Health Without Bodies: Health Claims and Scientific Evidence on the European Market (Health, Technology and Society) 9819949491, 9789819949496

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HEALTH, TECHNOLOGY AND SOCIETY

Health Without Bodies Health Claims and Scientific Evidence on the European Market Kim Hendrickx Afterword by Isabelle Stengers

Health, Technology and Society Series Editors

Rebecca Lynch Wellcome Centre for Cultures and Environments of Health University of Exeter Exeter, UK Martyn Pickersgill Usher Institute University of Edinburgh Edinburgh, UK

Medicine, health care, and the wider social meaning and management of health are undergoing major changes. In part this reflects developments in science and technology, which enable new forms of diagnosis, treatment and delivery of health care. It also reflects changes in the locus of care and the social management of health. Locating technical developments in wider socio-economic and political processes, each book in the series discusses and critiques recent developments in health technologies in specific areas, drawing on a range of analyses provided by the social sciences. Some have a more theoretical focus, some a more applied focus but all draw on recent research by the authors. The series also looks toward the medium term in anticipating the likely configurations of health in advanced industrial society and does so comparatively, through exploring the globalization and internationalization of health.

Kim Hendrickx

Health Without Bodies Health Claims and Scientific Evidence on the European Market

Kim Hendrickx FNRS & Spiral Research Centre University of Liège Liège, Belgium

ISSN 2946-3386     ISSN 2946-3378 (electronic) Health, Technology and Society ISBN 978-981-99-4949-6    ISBN 978-981-99-4950-2 (eBook) https://doi.org/10.1007/978-981-99-4950-2 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Singapore Pte Ltd. 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: © Kwanchai Lerttanapunyaporn / EyeEm This Palgrave Macmillan imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Paper in this product is recyclable.

I dedicate this book to the memory of my parents Lidy Hendrickx and Ivo Hendrickx.

Series Editor’s Preface

Medicine, health care, and the wider social meanings and management of health are continually in the process of change. While the ‘birth of the clinic’ heralded the process through which health and illness became increasingly subject to the surveillance of medicine, for example, surveillance has become more complex, sophisticated, and targeted—as seen in the search for ‘precision medicine’ and now ‘precision public health’. Both surveillance and health themselves emerge as more provisional, uncertain, and risk-laden as a consequence, and we might also ask what now constitutes ‘the clinic’, how meaningful the concept of a clinic ultimately is, and where else might we now find (or not find) healthcare spaces and interventions.

Ongoing developments in science and technology are helping to enable and propel new forms of diagnosis, treatment, and the delivery of health care. In many contexts, these innovations both reflect and further contribute to changes in the locus of care and burden of responsibility for health. Genetics, informatics, imaging—to name but a few—are redefining collective and individual understandings of the body, health, and disease. At the same time, long-established and even ostensibly mundane technologies and techniques can generate ripples in local discourse and practices as ideas about the nature and focus of health care shift in response to global debates about, for instance, One Health and Planetary Health.

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Series Editor’s Preface

The very technologies that (re)define health are also the means through which the individualisation of health care can occur—through, for instance, digital health, diagnostic tests, and the commodification of restorative tissue. This individualisation of health is both culturally derived and state sponsored as exemplified by the promotion of ‘selfcare’. These shifts are simultaneously welcomed and contested by professionals, patients, and the wider public. Hence they at once signal and instantiate wider societal ambivalences and divisions. This Series explores these processes within and beyond the conventional domain of ‘the clinic’ and asks whether they amount to a qualitative shift in the social ordering and value of medicine and health. Locating technical use and developments in wider socio-economic and political processes, each book discusses and critiques the dynamics between health, technology, and society through a variety of specific cases, drawing on a range of analyses provided by the social sciences. The Series has already published more than thirty books that have explored many of these issues, drawing on novel, critical, and deeply informed research undertaken by their authors. In doing so, the books have shown how the boundaries between the three core dimensions that underpin the whole Series—health, technology, and society—are changing in fundamental ways. In ‘Health Without Bodies’, Kim Hendrickx focuses on a field of praxis that has attracted much controversy and generated key anxieties both historically and in recent years: the regulation of health claims associated with food. Taking an anthropological approach that engages carefully and deeply with qualitative data and propels the literature in exciting new directions, this innovative monograph considers compelling questions around the co-construction and mediation of law and science as they play out within European food markets. Hendrickx explores how health claims around food have become truth-claims and an object of governance, following the formation of this ‘object’, associated evidence-bases and their use as political instruments, and the tensions and solutions that implicate, or as Hendrickx suggests, ‘index’ the body. This exciting ethnography provides a bold analysis of the articulation between ontologies of food,

  Series Editor’s Preface 

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bodies, legislation, markets, politics, and science itself. Through ‘Health Without Bodies’, Hendrickx illustrates the complexities inherent to shifting understandings and deployments of regulatory and evidentiary techniques and the problem of the unruly, metabolising body. He presents a novel interpellation of science and technology studies with wider social and political theory that will be vital to future critical analyses of health and technoscience. London, UK Edinburgh, UK

Rebecca Lynch Martyn Pickersgill

Acknowledgements

As it goes with books, my name is on the front cover, but that is of course a label with misleading information. Not a single book would see the light of day without the encouragement, practical help, and moral support of others, nor without the ideas and publications from within a scientific community. Although I would like to, I cannot thank all authors (and writers) who have inspired me and keep showing me that writing is something worthwhile to do. I hope that my references in the text, and occasionally in a footnote, attest to this in a way that readers, including perhaps some of the authors referenced, might appreciate. I am very lucky and grateful to be part of the Spiral Research Centre at the University of Liège. This is the initial nodal point from which all connections started pointing outward. It is a stimulating, friendly, fun, relaxed yet extremely efficient group of people—a community of support, intellectual exchange, daily lunches, fine barbeques, and a shared commitment to the sensorial exploration of wine, cheese, and the better Belgian beers. In random order my thanks go out to my current colleagues Hélène Dodion, Matthias Sabbe, Valentine Meens, Lucas Bechoux, Luce Lebrun, Merlin, Tieleman, Jean-Baptiste Fanouillère, Justine Contor, Céline Parotte, François Thoreau, Hadrien Macq, Sarah Delvaux, Kamilla Karhunmaa, Roxane Gabet, Simon Vanderstraeten, Nina Ferrante, Daniele Valisena, Shana Riethof, Jenske Bal, Martin Denoun, Nassima Abdelghafour, Damien Piron, and Nathan Charlier. These people are all fabulous colleagues and have in one way or another contributed to the book through comments and references in the stimulating environment that is Spiral. Aurore François drew my attention to the work of Mariana xi

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ACKNOWLEDGEMENTS

Valverde on alcoholism as a liberal disease, which has proven important to this book. Thank you to Min Reuchamps, Patrick Wautelet, Julie Colemans and Gérôme Arnold for their institutional support which also contributed to making this book possible. Special thanks to Pierre Delvenne for his unrelentless support and trust in strategic times, and his benevolent and stimulating presence at our research centre on all of the other weekdays. Thank you to Catherine Fallon for an equally unrelentless support and a near supra-human capacity to squeeze re-readings and discussions in her vertiginous occupation of the time and space available according to the laws of terrestrial physics and caffeine. It was also Catherine who first brought up the curious case of quasi-therapeutic ‘magical’ foods before I knew what I was about to get myself into. Together with Catherine Zwetkoff, who we all dearly miss, Catherine Fallon hired me many years ago on a temporary contract, placing her trust in someone with a student curriculum that bore the indications of a career that might be safely pursued outside of academia. The two Catherines then encouraged me to apply for a PhD grant. With Catherine Zwetkoff, Sebastien Brunet gave Spiral the impetus which made it into the vibrant research centre it is today. He granted me the trust and freedom that are vital to pursue original fundamental research, and he keeps reminding me that a sense of humour shapes good research questions. All of this just to say that, if every University Department had its own Spiral Research Centre, the academic world would be a better place. I am grateful for the institutional support of the FNRS, the Fund for Scientific Research in Belgium. Thank you to the people at the Health, Ethics & Society (HES) Department at Maastricht University, who welcomed me as a visiting scholar many years ago while I was conducting the research that went into this book. I thank Ine Van Hoyweghen for her accompaniment during my doctoral research, for suggestions that have proven crucial for the content of this book, and for her trust and support which made it possible to pursue seven years of postdoctoral research at the Life Sciences & Society Lab, Department of Sociology, at the University of Leuven. Thank you to Annet Wauters, Gert Meyers, Janneke Kuiper, Michiel Van Oudheusden, Siemen Vanstreels, Luca Marelli, and Elisa Lievevrouw for being great colleagues during those years.

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Vinciane Despret and Isabelle Stengers merit a health claim: a daily dosage of their writings is good for mental health: it changes habits of thought, beneficially affects both thinking and writing, and offers a richer world to perception and experience. They are active ingredients in the book. I thank them both for their support over the past years. Heartfelt thanks to Isabelle for her afterword. Thank you to Loes Diricks and John Pearson for their careful reading and ‘non-intrusive’ editing to the afterword originally written in English. Among the philosophers at the University of Liège, I would like to thank Florence Caeymaex and Julien Pieron for their interest in my work and the many occasions they have provided (and keep providing) to participate in seminars and publish together. At the Free University of Brussels (VUB) I thank Serge Gutwirth. Law is not the same before and after Serge. At Palgrave Macmillan, I would like to thank Joshua Pitt who was my editorial contact before Marion Duval took over his position as the Health, Technology and Society Series’ acquisitions editor. Thanks to Marion for her follow-up during the different stages of the publication process and for her confidence and flexibility with deadlines. Thanks to Connie Li for her rapid and effective help with the many practical issues during the production process. A special word of thanks to Andrew Webster, who is unfortunately no longer here to see the book for which he encouraged me to send in a proposal. A prolific academic, sensitive to what STS may mean to policymaking, I remember Andrew especially as an extremely generous, supportive, helpful, and open-minded person, and a catalyst for bringing colleagues and students together. For their reading and commenting on portions of the book manuscript, I thank Thibault De Meyer, Gert Meyers, Irene van Oorschot, and Aline Thiry. Thanks to Nina Janasik for her interest and comments on an early research paper. Parts of Chapter 2 have been previously published in the journal LIMN as: Hendrickx K. (2014) The Silence of the Labs, LIMN 4: Food Infrastructures. Parts of Chapter 3 extend on material previously published as: Hendrickx K. (2017) Working imagination along the fooddrug divide. In: Verschraegen G., Vandermoere F., Braeckmans L., Segaert B. (Eds.), Imagined Futures in Science, Technology and Society, London and New York: Routledge: pp. 65–87. No book would have seen the day if Aline Thiry did not remind me on a regular basis that someone in the household had planned to write a book

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and better be getting on with it. A sociologist and anthropologist herself, from whom I have learned so many things over the years, she gave me confidence whenever I was about to dismiss paragraphs, chapters, or occasionally the entire book as not worth bothering other people with. Most importantly, together with our children Nina and Maël, she also reminds me every day that there are many other adventures to be lived.

Praise for Health Without Bodies “Health Without Bodies is a fascinating journey into the claims and counterclaims surrounding the ‘health benefits’ of foods. Such foods become entangled in a powerful web of regulatory governance demarcating the boundaries between medicine and nutrition, the pharmacological and the nutracological, the patient and the consumer. Nowhere are such boundaries more volatile than in the context of food, and especially in the way that food is so anthropologically pivotal to questions of culture, morality and political order.” —Nik Brown, University of York. Author of Immunitary Life: The Biopolitics of Immunity (Palgrave Macmillan) “In this carefully researched exploration of health claims on food labels, Kim Hendrickx investigates not just a complex corner of European food law but the whole conundrum of how food knowledge and the market intersect. Throughout vivid empirical explorations from sugar refineries to corporate settings, Hendrickx invites us to undertake a crucial move: seeing scientific and regulatory debates as sites for understanding how the architecture of the European market deals with the irruption of bodily matters.” —Brice Laurent, Mines Paris & Anses. Author of European Objects. The Troubled Dreams of Harmonization (MIT Press).

Contents

1 The  Contours of a Problem  1 A Storm in a Glass of Water   3 Statements on the Market   6 Health Claims and Functional Food at the Turn of the Century   9 The Health Claim as a Problem Space  15 Overview of the Book in Chapters  20 References  22 2 Sugar’s Legacy 27 Grounding the Story  27 The Socialization of Sugar  31 Transforming Sugar  37 From Sugar to Prebiotics  38 From Prebiotics to Functional Foods  40 From Experts as Individuals to Expertise as a Practice  46 References  47 3 Health  Benefits Looking for a Science 49 Nutritionism and Public Health  50 Markers and the Clinical Outside  55 From Concepts to Evidence  63 The Stratagem of Functional Food Science  65 References  66

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CONTENTS

4 The  Common Market and the Rise of Information 69 A Common Food Market  71 From Food to Information  73 Health and Disease in the Courtroom  75 Information Politics  81 References  83 5 Liberal  Food, Liberal Consumers 85 Things, Commodities, and Consumers  87 A Legislative Proposal  89 Risk Factors  91 Nutrient Profiles  93 Information’s Constitutive Outside  96 Who, or What, Is the Consumer?  99 What Can(not) Be Said About the Body 104 References 108 6 Bodies of Evidence111 EFSA Putting Claims to the Test 112 Nutrition’s Lost Alliance 114 Regulatory Science and Evidence 117 Socializing Molecules 120 The Clinical Body and Evidence-Based Medicine 125 Ways Around the Drug Trial 126 The Indexed Body and Evidence-Based Nutrition 129 References 134 7 Territorial Disputes137 ‘First Say Where You Come From!’ 139 A Moral Economy, with Things in It 144 Metabolic Territory 148 References 149 8 Health Without Bodies151 Escape Routes 151 The Trouble with Bodies 155 Fragile Divisions and the Charlatan 157

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The Middle of the Maze 159 Tipping Point 161 References 163 Afterword: Of Charlatans and Crooks165

Abbreviations

BSE Bovine Spongiform Encephalopathy CJEU Court of Justice of the European Union DP Degree of Polymerization EBM Evidence-based medicine EBN Evidence-based nutrition EC European Commission EU European Union FOS Fructooligosaccharides FUFOSE Functional Foods for Europe ILSI International Life Sciences Institute RCT Randomized Clinical Trial

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List of Figures

Fig. 2.1 Fig. 2.2 Fig. 2.3 Fig. 3.1 Fig. 3.2 Fig. 3.3

The macroscope (photo by author) Sugar, health, and lady justice (photo by author) Exercise bikes in the museum (photo by author) Classification of markers relevant to the effects of functional foods (reproduced from Diplock et al. 1999: 7) The human body as a point of articulation between components and claims (reproduced from Diplock et al., 1999: 25) Reproduced from Diplock et al. (1999: 25)

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CHAPTER 1

The Contours of a Problem

Eating relates the human body and mind to its surroundings: metabolism renders boundaries porous. Boundaries are a sensitive matter in all cultures, and eating has always been invested with relations of control and power. Different groups and institutions have moralized food throughout the centuries and have proclaimed the ‘right’ food and eating habits. Indeed, different moral and religious authorities have prescribed what one should (not) eat and continue to do so today. Since the nineteenth and twentieth century, we can count in state administrations and scientific institutes as producers of classifications of foodstuffs and prescriptions for healthy diets and ways of living (Foucault, 2001; Nestle, 2007) and their role today is of considerable importance (Demortain, 2007; Winnickoff & Bushey, 2010). Food circulates on the market as a commodity, and there are limits to what may be lawfully put on the market as food in terms of safety. Once a food is considered safe, there are limitations to what can be said about food. In that respect, health claims are in intriguing case. A health claim is a statement on a food label claiming that a food or food ingredient contributes to better health. Health claims are intriguing, because they combine promotion or advertising with a claim to scientific fact. They are a particular type of truth-statement on the market. Contrary to other forms of advertising, health claims are subject to a premarket approval procedure in the EU and other legal systems, such as that of the US. This means that claims must be proven true before they can circulate on the market. Here, © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 K. Hendrickx, Health Without Bodies, Health, Technology and Society, https://doi.org/10.1007/978-981-99-4950-2_1

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a number of questions arise: how can health claims be shown to be true? Is this a scientific question and does science have answers? Can a health claim refer to disease or not, and who can answer that question in the first place? Who makes the difference between what counts as ‘health’ or ‘disease’ and how? Boundaries matter, and health claims touch upon the sensitive boundary between food and medicine. This adds another question: if a health claim is proven to be true, and a particular food or ingredient affects human health in some way (which?), then is it still a food? Does a proof of efficacy in this case not bring it very close to drugs? In this book, I will try to answer all of these questions, but I will not be able to answer them in general: the analysis in this book might not be applicable to other parts of the world, with different legal systems and food cultures such as the US, Brazil, or Japan. The hypothesis of this book is that health claims, by challenging a sensitive boundary between food and medicine, reveal aspects of what we might call the culture, or the cultural politics, of food on a specific market and its relation to law and science. Everyone knows of course that laws vary among countries, and that markets and foods are diverse and particular across the globe. This book is not about pointing out particularisms in order to make an argument about variation and diversity. It is about discovering the limits of variation in order to say something about the particularities of a given market and polity. This book is an in-depth ethnography of what can and cannot be said about food and health within the context of a particular fabric that we call ‘the market’. The market in question is the EU common market. I will refer to the common market in terms of a fabric throughout the pages that follow: a fabric woven from laws, jurisprudence, and politics as threads among others that make up patterns that gradually change over time, but patterns nonetheless. A key argument in this book is that forms of scientific evidence are part of that fabric. The premarket approval procedure for health claims calls upon science to protect the consumer from misleading information: a science that speaks truth from a position outside of the fabric—a position of objectivity and universality. Yet we will see that what is referred to as ‘science’ are in fact ways of classifying and ranking evidence, and that is something different. This book details discussions about evidence and different evidence-bases as political instruments that articulate basic questions, such as the difference between food and drugs, or health and disease, within a given polity, while setting the limits of those questions. Let us turn to an instructive example to make that point more clearly and to get a first taste of health claims as a particular problem.

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A Storm in a Glass of Water On September 19, 2008, the European Food Safety Authority (EFSA) received a most curious application for a food-related health claim. According to European law, health claims are voluntary promotional tools that food and ingredients companies may use for marketing purposes. This means that companies are under no obligation to make such statements about their products or ingredients, but if they do, then they must submit an application for approval to the EFSA: a standard request and portfolio with scientific evidence for the claim. Examples of statements that are allowed on the EU market today are ‘Calcium increases bone density’ or ‘Beta-glucans contribute to the maintenance of normal blood cholesterol levels’.1 For vitamin B7, also known as biotin, a host of diverse and remarkable claims are authorized such as ‘biotin contributes to normal psychological function’, ‘biotin maintains normal hair’, and ‘biotin contributes to a normal functioning of the nervous system’. There is also ‘beet root fibre increases faecal bulk’ for ‘people want to improve or maintain a normal bowel function’. There is something peculiar about these statements. These claims all refer to normality and one wonders how normality is defined in the first place, before considering that it may be maintained or even improved. If normality can be improved, then is health a deficient state? There is another type of claim that does not refer to normality but to disease risk, such as: ‘Supplemental folic acid intake increases maternal folate status. Low maternal folate status is a risk factor in the development of neural tube defects in the developing foetus’. Or: ‘Sugar-free chewing gum helps neutralise plaque acids. Plaque acids are a risk factor in the development of dental caries’. Another claim is ‘Vitamin D may reduce the risk of falling. Falling is a risk factor for bone fractures’. The latter claim is almost comical. Following the reasoning of the claim, one might say that falling is a risk factor for many things, including breaking one’s glasses for example. Does Vitamin D also protect your glasses when you fall? Is the relation between vitamin D and bone fractures more immediate than between vitamin D and the breaking of one’s glasses? Arguably, it is the relation to ‘health’ that is more immediate with reference to bone fractures, and yet, 1  These and the following examples are all drawn from the publicly consultable EU register of health claims: https://ec.europa.eu/food/food-feed-portal/screen/health-claims/ eu-register

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might there not be some margin of manoeuvre if the relation between vitamin D and glasses is brought to bear upon eyesight and ‘normal’ vision? This may seem far-fetched, but exploring the room to move within limitations, boundaries, and classification margins is what health claims are all about. So, in 2008, the EFSA received the following application: ‘Regular consumption of significant amounts of water can reduce the risk of development of dehydration and of concomitant decrease of performance’.2 This statement helpfully reminds its reader that water hydrates. After a number of communications and requests for clarification between the EFSA and the applicant in 2008, 2009, and 2010, a panel of experts within the EFSA adopted a scientific opinion about this health claim on January 28, 2011. EFSA rejected the claim. The reasons for the rejection are interesting. Was the claim too obvious? Too silly to be allowed on the market? No, these questions naturally come to mind, but here we are thinking with common sense, as people who buy and eat food, and who might occasionally read what the food label says. As we will see, the laws that regulate health claims on the EU Common Market have a different kind of common sense: a way of making new kinds of sense common to the market. Was the claim considered untruthful then? No, that is common sense again. The reasons for the rejection were technical. The EFSA considers dehydration to be a disease, and health claims on food cannot lawfully refer to disease. Health claims cannot state that a food prevents, treats, or cures disease symptoms. Health claims can only be said to reduce a risk. But this is what the claim says: it reduces the risk of dehydration. Yet EFSA argues that dehydration is a pathological state, so if the consumption of water reduces the risk of dehydration, then a risk factor for dehydration must be identified. Upon request from the EFSA Panel (as part of the communications that took place between 2008 and 2011), the applicant specified what they considered as risk factors and proposed ‘water loss in tissues’ or ‘reduced water content in tissues’. In its final scientific opinion, the Panel says the following: ‘The Panel notes that the proposed risk factors are measures of water depletion and thus are measures of the disease (dehydration)’ (EFSA, 2011, p. 7). In other words: a risk factor is still lacking, and only a measure of the disease was given.

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 Taken from EFSA’s published scientific opinion on the claim: see EFSA (2011).

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The applicant brought the case before the European Court of Justice on January 12, 2012.3 One of the arguments was that the EFSA Panel, in its exercise of discretion, misinterpreted the wording of the claim in terms of risk factors and disease. While the EFSA opinion mentions ‘dehydration’ as the disease, the applicant now claimed that dehydration is the risk factor, and that ‘decrease of performance’ is, in fact, the disease. In response, the Court refers to the European Commission’s (the defendant) position on that point, namely that decrease of performance is not a disease in itself but rather a consequence or symptom of dehydration as a pathological state. The Court issued its final judgement on April 30, 2014, and concluded that the applicant had been unsuccessful, inviting the applicant to bear their own costs for the action, as well as the costs incurred by the European Commission. The applicants were two German academics specialized in food law, Moritz Hagenmeyer and Andreas Hahn. Their intention was not to commercialize water bearing health claims, but to put the existing EU Regulation on health claims to the test  (see Health Claims  Regulation, 2006). This, however, does not mean that the water claim was a joke, and its assessment by the EFSA a mock assessment. The reasons for submitting the claim were simply not commercial in nature (at least not directly). According to a brief analysis of the case and its relevance, one lawyer says that it was a welcome test case, bringing more precision into case law. The lawyer then asks to imagine what would have happened if the claim had been approved after all: if mineral waters producers started stating the obvious, this would not add any specific information relevant to the consumer. The claim and case about water is absurd to common sense, and it might very well have had its place in a novella by Kafka. One is puzzled by the amount of effort in terms of time, resources, and people—indeed the sheer weight that is given to a statement that seems so obvious or plainly ridiculous. The claim was made at a time when thousands of other claims were being evaluated by EFSA, some of which might rival with the water claim in form and informational content. Other claims, such as plant sterols that lower cholesterol (an approved claim), seem more straightforward, perhaps because they read like a medicinal claim. The water claim is almost absurd. If discourse is a problem space, then health claims, as statements, indicate limits of some kind to that space. And as we will see in this 3  For a case report and legal analysis of the arguments of the parties and decision by the Court, see: Liebmann (2012).

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book, the form and content of health claims are the outcome of a long process to constitute a market for them. They tell us something about the threads that have been woven into the market fabric. Health claims are intriguing, banal, silly, controversial, problematic, unclear, paradoxical, technical, obvious, and puzzling all at the same time. And, as the water case illustrates, the question of truth seems awkwardly tangential to a matter that seems to be more about the technicity of concepts and wording than about water and hydration as such. In a fabric woven with the threads of legislation and political negotiation, health claims play tricks on what seems obvious, by pushing the boundaries of what health and disease may refer to. They have pushed lawyers into testing the limits of the regulations they study. They have provoked debate among lawmakers in the European Parliament. They have polarized scientific communities of nutrition specialists. They have mobilized food companies and consumer organizations. But they have rarely made it to the headlines and, for sure, the fate of humanity will not depend on health claims. Are they a storm in a glass of hydrating water? They possibly are and that makes for about the right size of storm for the ethnographer to look closer at it and ask: what is this glass, containing the storm?

Statements on the Market To contain means holding something, in the double sense of providing a space for something and delimiting that space. This poses the double question about how things are assigned a place, and how they are being kept in place for the glass not to spill over. A health claim on a food product refers to many things and suggests specific relations between them: a claim refers to a specific ingredient—a mineral, a vitamin, an added plant sterol, an added bacterial culture. It refers to the product that contains this specific ingredient as well and to the brand that is selling the product. The claim also refers to the human body by specifying what the food constituent is ‘good for’ and how that contributes to ‘better health’. From the viewpoint of legal scholars and policymakers, health claims are a type of information, and information must be relevant to the consumer. Food, body, health, information, consumers, … so many abstractions at once! And so many occasions to single out one of them as the central concern for the ethnographer; that what the research is ‘about’. And it would be perfectly legitimate to make such a choice and focus, for example, on consumer perception of health claims;

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or on corporate lobbying and strategies to gain credibility in the food sector; on nutrition science and its history; on food labelling and consumer politics. Puzzled by the absurdity of many claims, such as in the examples above, the choice that I have made is to focus on the health claim as a particular type of statement, and on the juridical-political construction of limitations to such a statement. While some claims have an intuitive appeal as being true or pertinent (say, calcium making your bones stronger), others clearly search for, and push, limits of some kind beyond which the claim becomes absurd. The water case above clearly shows that the question of limits engages fundamental concepts such as the nature of health and disease and the difference between them. Yet the discussion of these questions is not anthropological or philosophical, but technical. My question is: how did it become technical? Who or what provided the resources to turn fundamental questions into a technical problem space? The problem of health claims as a type of statement is not a theoretical or logical one because health claims do not appear in isolation. They appear on a food label, in public space, on food shelves in the supermarket, and on the EU common market. If an international food market seems abstract, then the local supermarket is the place to go: there you can see how international forces fit into a building the size of a medium church (in Europe at least). The strategies of international food players, but also of regulators, come together on the food shelf. Literature in sociology and Science and Technology Studies (STS) on food labels and markets shows that labels and statements are part of, or rather the result of, a dense network of legislation, political negotiation, classification work, and standardization practice (Frohlich, 2017; Laurent & Mallard, 2020; Schleifer, 2012). Food labels are an infrastructure of marketing, politics, and communication—a map of political and legal battles and strategies. More generally, food labels are part of what makes food into a specific product or commodity that may freely circulate on a common market. I should place ‘freely’ in quotation marks because the label bears the traces of the requirements and constraints that apply and that turn the product into a tradeable commodity in the first place. Constructivist social studies of markets and the economy insist on economization as a process, rather than on ‘the economy’ as a given.4 Objects, in this line of thinking, can only become 4  References, among others, are Caliskan and Callon (2009, 2010) and Cochoy et  al. (2017). I return to this work and that of others in more detail in Chap. 5.

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tradeable goods through a process of economization which involves disentangling the object or ‘thing’ from the many different appreciations, values, and meanings that are attributed to it. It must become standardized and made comparable, de-personified in a sense, for it to become a commodity that may circulate on the market and then take on successive layers of meaning and use when encountering consumers. A related version of this approach considers markets as particular zones of circulation that constitute their objects through practices of qualification and criteria of standardization (Barry, 2006). The constitution and circulation of objects, then, is what performs the EU market. But what if the thing, good, commodity, object is really a statement? A health claim refers to food, for sure, but it is not in itself a food, an object, or a commodity. EU policymakers consider the health claim as information. Food legislation, as I will discuss in this book, has increasingly relied on marketing food as a commodity by regulating it in terms of information. In the regional patchwork of nations, food specialties and different standards of production that is the EU, it is easier to inform consumers through food labels what a product contains, instead of intervening directly by imposing what each product should be made of. This approach is often referred to as ‘allow but inform’. This means that information is an outcome of a legislative and political process rather than a given. Whatever is presented as a nutritional ‘fact’ is only so after a number of parties have agreed on the factualness of the fact. For this reason, I cannot take for granted that health claims are information, because it begs the question how that information comes about and who may certify its validity. So caution is in order because a term like ‘information’ already qualifies health claims and attributes a value to it, according to the framework of specific actors: as if claims were simply an extra piece of certified information for the consumer to take into account in making healthy choices. For the purpose of this book, it is important not to confuse the concept of health claims with that of information and reiterate that framework. The right question to ask is how health claims have become conceived of and regulated as a form of information, and what the implications of that are. There is another term that relates closely to health claims, but which is often used too quickly in the same breath, namely functional food. Again, the question is how the nutritional concept of functional food relates to the regulatory concept of the health claim. I will discuss this in Chaps. 2 and 3. At this point, it is useful to sketch a brief history of health claims

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and functional foods, and to point out why health claims as statements are the focus of this book, rather than functional foods as products.

Health Claims and Functional Food at the Turn of the Century ‘Let food be your medicine and medicine your food’—what does it mean when the CEO of a leading food company cites Hippocrates in the twenty-­ first century (e.g. Hatzhold, 2008)? Since the 1990s, processed food is being put on markets across the globe which allegedly supports or even enhances human health. Yoghurts that stimulate intestinal flora, or margarine that reduces cholesterol are among the best-known examples of products that make health claims. These products are placed in the supermarket among their conventional rivals without claims, but they are more expensive. It is believed that people are willing to pay more if the product has health benefits. So health became a niche for product innovation. From the mid-1990s until about 2010, these products promised a bright future, not only for companies such as Danone and Unilever, but also for the European Commission that considers innovation a priority for becoming a knowledge-based economy. The 1970s and 1980s, just before health claims emerged in the late 1980s, were troubling times for industrial food products. Questions were being raised about the composition of such foodstuffs and their negative effects on human health. Sugar, for example, had already become suspect in the late 1970s as a potential ‘villain in disguise’, as The New York Times put it (Brody, 1977). The debate on sugar’s responsibility for chronic ailments such as diabetes and obesity continues in the twenty-first century and there was a new outburst of warnings and questions in the early 2010s, where, for example, the New York Times asked ‘Is Sugar Toxic?’ (Taubes, 2011) and BBC News wondered what caused the obesity crisis in the West (Perreti, 2012). ‘Sugar is addictive and the most dangerous drug of the times’, said a Telegraph headline (Westfield, 2013). More recently, anthropological work also looked into the social diffusion of a global epidemic, related to sugar (Moran-Thomas, 2019). Fat and transfatty acids (e.g. in margarine) and their effects on blood cholesterol and heart disease are another example (Scrinis, 2013; Schleifer, 2012), along with caffeine and its possible contribution to cancer, birth defects, and heart disease (Troyer & Markle, 1984). The 1980s then saw

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the appearance of ‘fat-free’ and ‘sugar-free’ products, and just a little later, certain products were being marketed as having benefits for human health. Having been criticized for its trans-fat content, margarine appeared in a new guise in 1995: the Finnish product Benecol was a margarine that would lower your blood cholesterol levels (instead of raising them), and that would help to prevent cardiovascular disease (instead of causing it) (Lehenkari, 2003). Little later, the food giant Unilever marketed its own version of cholesterol-lowering margarine called Becel ProActiv or Flora ProActiv (in the UK). An oft-cited book about health claims and its related nutritional concept ‘functional foods’ calls the industry’s move towards the marketing of health the ‘functional foods revolution’: During the late 1990s the food industry has enthusiastically, almost evangelically, come to embrace the whole new concept of functional foods—foods and beverages that may provide health benefits beyond basic nutrition, and which have been termed ‘nutraceuticals’ in the US. (Heasman & Mellentin, 2001: xvi)

The concept of ‘functional foods’ provides the marketing of health claims with a nutritional concept, and the food industry embraced it. The concept makes an appeal to science. A landmark publication in the British Journal of Nutrition, which I will discuss in detail in Chap. 3, introduces a scientific consensus definition of the term ‘functional food’ for the first time: A food can be regarded as ‘functional’ if it is satisfactorily demonstrated to affect beneficially one or more target functions in the body, beyond adequate nutritional effects, in a way that is relevant to either an improved state of health and well-being and/or reduction of risk of disease. (Diplock et al., 1999: S6)

The authors of this article are enthusiastic about the possibility, contained in the definition of functional foods, for nutrition science to surpass and redefine its own object of study—‘nutrition’ : We are at a new frontier in nutrition science because, at least in the industrialized world, concepts in nutrition are changing significantly. We are progressing from a concept of ‘adequate nutrition’ to one of ‘optimal nutrition’. (Diplock et al., 1999: S5)

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Functional food was thus proposed as a scientific concept for nutrition scientists at the end of the 1990s, and the concept stood for a significant change in both science and society: the industrialized world was said to progress to ‘optimal nutrition’, leaving behind food as a basic need for hunger satisfaction and survival (Diplock et al., 1999: S5). I will show that the food industry did not simply ‘embrace’ the concept of functional foods as one of the quotes above suggests, but that it forged the concept (Chaps. 2 and 3). But why would the food industry go through the trouble of making scientific claims? Isn’t marketing and advertisement enough? I will argue that the food industry anticipated new legislative and political developments in the EU when it introduced the concept of functional food as a ‘nutritional’ or ‘scientific’ concept. Functional foods are a global phenomenon, and critiques have emerged as soon as the term functional foods came in use in the 1990s and 2000s, in the articles of scientific journals, industry and consumer organization newsletters, and the media. While some scientists announced a revolution in nutrition science, where ‘adequate’ nutrition would give way to ‘optimal’ nutrition (Diplock et al., 1999), others insisted on the fact that it was above all a matter of marketing (Ostberg, 2003; Nestle, 2007). An editorial in the British Medical Journal was entitled: ‘Functional foods: health boon or quackery?’ (Jacobson & Silverglade, 1999). Another question was how functional foods can be distinguished from drugs. (Ibid.; Coppens et al., 2001; Katan & De Roos, 2004; Chadwick et al., 2010). Functional foods were and still are seen by some as part of public health strategies (Stein & Rodríguez, 2008), while others place functional foods within an ‘ideology of nutritionism’ (Scrinis, 2008a). This ideology reduces and simplifies the relation between foodstuffs and human health to a matter of nutrients. Rather than public or personal health, functional foods are said to provide no more than a health simulacrum (Ostberg, 2003). Yet others place functional foods in a broader movement towards the medicalization of food (Lawrence & Germov, 2004). The diagnosis that one makes about functional foods in society depends, of course, on how one defines them. Different authors and organizations propose definitions of what functional foods are. In the early 2000s, the International Food Information Council defined these foods as ‘foods that provide health benefits beyond basic nutrition’ (in Schneider, 2005: 1). This definition specifies an object with specific properties. The International Food Information Council, like its European variant the European Food Information Council, is officially a non-profit organization, with food companies as its main members.

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Watchdogs like the Center for Media and Democracy alert that this organization actively defends the interests of the food industry.5 Moving ‘beyond basic nutrition’ is what food companies and corporate nutritionists like to emphasize, but is the support of health not simply part of basic nutrition? Is there a difference between a nutrition that is ‘basic’ and a more advanced form of nutrition? Are not all foods functional in some way? Nutrition researchers Katan and De Roos, both critical of the concept of functional foods, propose a different type of definition: ‘a branded food which claims explicitly or implicitly to improve health or well-being’ (Katan & De Roos, 2004). Here, emphasis is put on what is said about an object—a branded food—rather than on the object and its alleged properties. This definition defines a type of claim. A report of the European Joint Research Centre, as part of the European Commission, emphasizes the potential of technological innovation: ‘Functional food is defined as food that is taken as part of the usual diet and has beneficial effects that go beyond nutritional effects’. They add: ‘So far this functionality is mainly created during the industrial processing of food through the addition of bioactive ingredients’ (Stein & Rodríguez, 2008: 73). The European Commission’s Directorate General for Research issued a brochure on the what, how, and why of functional foods (European Commission, 2010) and again stresses pathways for product innovation such as the adding of components to food (e.g. a spread with added phytosterols); the removal of components (e.g. a yoghurt with reduced fat); the modification, replacement, or enhancement of components (e.g. a juice drink with enhanced antioxidant content, a yoghurt with added prebiotic or probiotic). It also mentions the modification by plant breeding or other technologies of natural foods, like lycopene-enhanced tomatoes, vitamin E-enriched vegetable oils, or vitamin A-enriched rice. Nutritionist and sociologist Marion Nestle describes functional foods as a type of ‘technofoods’ (Nestle, 2007). She explains that, in the US, a favourable regulatory environment for health claims on conventional foods encouraged the food industry to design functional foods where ingredients are removed or added. In this context, functional foods appeared as a special version of foods for which health claims are made. Historian of science and social theorist Gyorgy Scrinis (2008b) critiques the category of ‘functional foods’ and proposes alternative ways of 5  Source: http://sourcewatch.org/index.php?title=International_Food_Information_ Council. Last accessed in January 2023.

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categorizing these foods. He says: ‘I argue that there are no credible definitions of “functional foods” that establish criteria for distinguishing between these and other foods (…) in terms of any intrinsic, health-­ enhancing characteristics. Instead, the main distinguishing features of foods defined as “functional foods” appear to be either that they have been “nutritionally engineered” and/or that they are promoted with nutrient-content or health claims’ (Scrinis, 2008b: 541). He then proposes to distinguish nutritionally marketed foods (making a claim about the nutritional content of a food), functionally marketed foods (making a claim about the functional properties or health benefits of a food), and nutritionally engineered foods (which have been nutritionally altered). A particular food product can be several of these at once. The main reason for Scrinis to propose these distinct categories is to question the relation between functional foods and health. Nutritional engineering in itself doesn’t make a food necessarily healthier (e.g. folic acid added to breakfast cereals high in sugar content). I agree with Scrinis that the definitions and concepts used (functional foods and health claims) need due attention, as they are never neutral. Defining functional food is indeed a stake in itself for both functional food promotors and critics. In Chap. 3, I will discuss how a consensus definition was forged amongst European nutrition scientists and the food industry in order to promote functional foods. A health claim is indeed a claim made in the context of the marketing of a product, whereas the concept of ‘functional food’ already presupposes its own functionality. Functional food, in that sense, is already a qualification: the food in question is functional (e.g. for health). In academic literature, functional foods and health claims in a broad sense (including nutrition claims) have received attention from a variety of angles such as consumer perception and use (Weiner & Will, 2015; Jauho & Niva, 2013); the imagination or configuration of the consumer (Frohlich, 2011; Weiner, 2010); the process of product development (Lehenkari, 2003; Penders & Nelis, 2011); the politics of food labels (Schleifer, 2012; Frohlich, 2017); advertising (Davis & Schneider, 2008); consumer understanding of claims (Jauho & Niva, 2013; Mariotti et al., 2010; Williams, 2005); and, as we have seen, critical approaches to industry and reductionism in nutrition science (Nestle, 2007; Scrinis, 2008a, b, 2013). This book builds upon many of these excellent analyses but it starts from a different question: what can or cannot be said about food within a given polity and economic space, the European Union, which is reputed

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to have the most elaborate and stringent regulation of health claims worldwide? Health claims and the slippery concept of functional food are of course related, and I will analyse this in more detail in Chaps. 2 and 3, but many promotors and critics of ‘functional food’ tend to emphasize the technological possibilities of these foods—foods that are somehow altered to become more healthy. Yet not all foods that bear health claims have been ‘altered’ in such a way, and the question of ‘altered’ foods is much broader than that of health claims: it opens up other legislative domains such as food safety, technological innovation, and public controversies on food quality, safety, sustainability, and health, spanning from regulatory objects such as GMOs to nanoparticles or novel ingredients. What is more, the very idea of a food being ‘altered’ depends on many considerations. Most food we find in the supermarket is processed food and, by definition, altered from primary ingredients into a complex product containing additives. The technological or altered side of food resides in matter, politics, and perception. While functional foods can be investigated as a case to open up such issues around the alteration of foods, the focus in this book is on the relation, in the form of an explicit claim, between food and health, which brings us back to health claims as a particular kind of statement. My interest in the relations, mediated by the European Institutions, between food, scientific evidence, the market and health, has close affinities to Joe Dumit’s analysis of a paradigm of mass health developed by the pharmaceutical industry in his book Drugs for Life (Dumit, 2012). Dumit proposes a US-based ethnographic inquiry into pharmaceutical marketing, advertising, and the organization of clinical trials. He discerns the emergence of a new paradigm of health that gradually started taking shape in the 1960s, and which became widely established from the 1990s onward. The preceding paradigm of health was one where health is considered as the normal status of a person. Health is when a person does not experience illness and has no symptoms. Disease is a different and temporary state in which the normal state is disrupted, and where drugs may be required to restore the normal state. In the ‘old’ paradigm, drugs have a curative function. Dumit traces the emergence of a new paradigm where health is redefined not as a state but as a process under constant threat; a new normality of being constantly at risk. Health, in this new vision, is by its very essence uncertain, in need of constant surveillance and, most important of all, in need of  preventive and chronic treatment. If being normal implies being potentially ill or at risk, even without symptoms,

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then chronic surveillance and treatment opens up an enormous and potentially limitless market of preventive drugs that have to be taken on a regular and chronic basis. Opening up such a market is at the root of this paradigm shift in the meaning of health for the pharmaceutical industry— an industry in constant search for new products as the patents of previous drugs expire one by one. In this book, we will see that the food industry proposes its own version of this new paradigm of health, but the difference is that health has never been the food industry’s core business. Nor has it ever been a significant dimension of European food law, in contrast to safety. What we will see in this book is what happens when health and—implicitly, yet importantly— the body are introduced in a juridical-legal fabric that was never designed for it. The regulation of food in Europe has historically developed around food safety and consumer protection. Once a food is considered safe (prior to any health claims), food becomes a matter of consumer choice. Health policies develop around the notion of choice, and some have considered health claims as a way to encourage healthy choices. Consumer protection in the area of food and health claims means protecting consumers from misleading information. So while the turn to a new health paradigm can be seen as part of a more general trend that has become common to such different sectors as food and pharmaceutics, it develops and articulates differently in both, and we will see that maintaining that difference is a major stake for food companies and legislators, each for their own reasons. In every chapter of this book, the difference between food and drugs is implicitly or explicitly present as a problem, and the problem mutates along the health claim’s coming of age as an object of governance.

The Health Claim as a Problem Space This book asks how health claims have become an object of governance: a new kind of truth-statement along with the modalities to verify that statement. It follows the gradual formation of this ‘object’, and the reverberations of a web stirred by the introduction of a new type of truth-claim on the market. My problematization of the health claim as a statement is originally inspired by Michel Foucault’s treatise on the nature of discourse (Foucault, 1971) and his particular way of approaching, singularizing and problematizing statements and enunciations in The Archaeology of Knowledge (Foucault, 2002 [1969]). I will not ‘apply’ Foucault’s work to health claims, but I take inspiration from his particular way of

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problematizing things that may seem evident, like a statement. Health claims are not simply phrases, nor are they logical propositions in form or in content—that much is clear from the water claim and from approved claims like vitamin D and beet root fibre! There is something peculiar in the way that health claims suggest what they are about; the way they refer to something. They are not referential in any ordinary sense. The question then is: in what sense do they refer? How do they render something present and at the cost of what? How do these particular types of statement include and exclude; what are their in- and outsides? Concerning discourse, Foucault says: ‘Of course, discourses are composed of signs, but what they do is more than use these signs to designate things. It is this more that renders them irreducible to language (langue) and to speech. It is this “more” that we must reveal and describe’ (Foucault, 2002, p. 54). I suggest that the ‘more’ of health claims is in the way they come to designate something. Let me turn that into a question: what is made to matter and what is excluded in the formation of the health claim as a type of statement, a form of enunciation on the market? The ‘more’ is a type of arrangement, the specificities of which I will try and make more explicit throughout the book. The health claim is a statement that only makes sense—even if it is a strange kind of sense—within a particular juridical-­ political fabric; the threads of which constrain the possible patterns that may be woven. So I conceive of health claims as a particular problem-space, and I will also call it a space of mobilization, because actors of various sorts (lawyers, policymakers, nutritionists, lobbying groups) mobilize in order to define the problem according to their constraints or interests.6 The inquiry in this book is empirical: it uses the tools of ethnography, and the field of my field work has the following demarcations: • A thematic demarcation: the health claim and its formation as a statement. • A spatial demarcation: the regulatory, economic, and political environment of the European Union and its common market. • A historical demarcation: the coming of age of health claims and their market from the mid-1990s onwards. Most of the ‘action’ happens between 2000 (an important court case before the European 6  I use the term ‘space of mobilization’ inspired by the work of Nicolas Dodier and Janine Barbot (2008) on disputes around AIDS research and clinical trials.

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Court of Justice) and 2012 (the publication of a Community List of accepted health claims). There have been small episodes of discussion since, and in late 2022, the problem of nutrient profiling which I will discuss at length, has been made a scientific and political priority again, after having lingered under the radar for many years. This book focuses on Europe. Yet, it is my hope that the relevance of the analysis in this book is not limited to Europe. An in-depth analysis of a limited space yields insights that are different from comparative research designs, and this difference is not one of theoretical potential but of the type of theorization that is possible. I am not concerned with comparing what I describe to other countries with specific legislations for health claims, such as the US, Brazil, Japan, and, since Brexit, the UK. The theoretical purport that matters to me is how law and politics—always specific and local—generate regimes of evidence. When evidence in regulatory science is meant to deliver a proxy for truthfulness on the market, via the food label, then a number of elements of the EU polity’s inner logic run into interesting and puzzling tensions as we will see. The political requirement of evidence puts the material composition of food back onto the political scene in a legislative regime that owes its efficacy to intervening as little as possible in food’s material composition, favouring information policies instead. The health claim and its requirements of evidence also remind that consumers have a body. If this sounds obvious, it is not evident at all in a liberal market economy based on the provision of information to rational choice-makers. How do you factor in the unruly body? And when it comes to bodies, the requirements of evidence bring the clinical trial into the sector of food production and marketing—a sector that has done everything to keep the clinical out while trying to benefit from a suggestive and symbolic alliance with medicine and the clinic. The narrative thread of the book is that of a trajectory: it runs parallel to the development of its object, and so we will move from a sugar refinery to a corporate lobbying group; from the European Court of Justice to the European Parliament; from a debate at the Royal Netherlands Academy of Sciences back to the sugar refinery I started from. We will travel through texts and places and participate in debates. Although I report on past events, my writing will occasionally switch to the present tense, when I feel that we should slow down and follow things step by step. I often write ‘we’ to involve you as a reader. It not only gives me the impression to have company along the journey, but it also affects the way I develop the

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analysis. There are theoretical reasons for this mode of narration too (in so far as the theoretical can be treated separately from both method and narration). One of the specificities of the health claim with respect to other types of statements on the market is its appeal to science. The problem, as we will see, is that the term ‘science’ is mobilized at all the different stops of our journey. And worse even, at several stops, we will be led to believe that there is good science on the one hand and bad science on the other, while everyone claims to be on the good side. Bad science is the proverbial Other for all the actors involved. In such contexts, it becomes absolutely critical to discern the practices that make actors speak in the name of science. To discern where science matters and where something else is happening. And to discern how different practices, such as law for example, articulate with politics. Politics is always present, but not always in the same way. And the different ways in which it is present matters a great deal, because it indicates what can or cannot be part of politics. Saying that ‘everything is political’ is as true an assertion as it is cumbersome and unhelpful. Analysing the inclusion and exclusion of things into politics— their political articulability—indicates the contours and constraints of how we think politics itself. The work of Annemarie Mol on food, eating and bodies, but also on choice and care, is of direct relevance to this book, as she experiments how our conception of ‘politics’ might change if we used metaphors of eating and metabolism to think politics, rather than metaphors of rational conversation (Mol, 2021). Or if we took inspiration from practices of care, rather than specific situations of choice  (Mol, 2008). Different versions of politics are possible, and while I might not be able to point out other possible versions, I am committed to at least better understand one implicit version that has made health claims possible as truth statements on the market. For its modest exercises in discernment, this book owes a lot to the work of Bruno Latour and that of Isabelle Stengers. In the pages that follow, the main tenet of Latour’s book Inquiry into Modes of Existence (Latour, 2018) is ever present. But as with Foucault, who inspired the initial problematization of this book, I will not directly ‘apply’ the specific modes of existence and enunciation that Latour qualifies and names. The challenge, for me, was discernment, not naming, and I believe that this was the main challenge for Latour too. When doing ethnography in one’s own society, discernment is particularly challenging as you might feel uneasy pursuing the full implications of a relation that seems to matter, while you have been taught that this relation occurs between two domains

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that ought to be kept well apart: like science and politics, or body and market. Or the inverse: you might notice that different practices are covered under a single term; an amalgamation that we take for granted, as is often the case with terms like ‘science’, ‘politics’, ‘body’, and ‘market’! If such terms are constantly relating to each other, and, at the same time, we know them to be very different, then there might be a problem with the way we tend to partition them. Dividing lines there may be, but perhaps they lie elsewhere. So the ethnographer would do well to ‘dissolve these amalgams’ (Stengers, 2017, 2023) and to try and discern when one particular practice is mobilized to explain or formulate the problems of another. Discernment sounds pretentious: as if one researcher were in a position to decide what belongs where in a given culture. But the challenge is not epistemological and definitive, but empirical and speculative. The concepts and metaphors we use to describe our own practices do not always accurately describe what it is we are really doing. Empirical research, using the observational and analytical tools of ethnography, makes it possible to try and describe what a community of actors, or a bundle of legal documents, are doing. That description is speculative insofar the researcher needs to be attentive to concepts and metaphors; ask how they contribute to shaping how a problem is formulated; and test other metaphors to see how this might enrich the analysis of the problem. While this book is not a full-fledged anthropology of the moderns, I have tried to take into account the specific requirements of such an anthropology in the writing of this book. Which brings me back to its narrative style: I could not have written it differently than in a step-by-step fashion; the gradual unfolding of a problem and its reformulation along the way. This stems not from an intention to explain things in a pedagogical manner but from a sense of perplexity concerning the many questions health claims raise and the ease with which so many people seem to explain them by referring to marketing, information, and ‘health’ itself. I wanted to ask fundamental questions: what are health claims, what is at stake, what are the limits of these specific types of statement? Such questions impose an itinerary along forms of reasoning and ways of doing. The itinerary is not inductive: it is not about avoiding theorization in order to discover bare facts that indicate what is really going on. More than often, counter-­ theorizing was in order. So many things are presented as clear and limpid and obvious and necessary. But  the world is saturated with theory and abstraction; political parties build their programmes on theory, we trip over abstractions in our daily business, and we hit our heads against

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concepts that have  materialized. If perplexity is going to direct your research, then you cannot simply let yourself be carried by it but you better hold on to it firmly and resist reiterating the concepts and theories that the objects you follow are made of.

Overview of the Book in Chapters Chapter 2, ‘Sugar’s Legacy’, historically situates the functional foods concept within the production infrastructure of sugar. An alliance of production facilities and of scientists leads to research into so-called prebiotics. With the help of European funding and the work of an influential corporate lobbying group, the  International Life Sciences Institute (ILSI), a project is organized from 1995 to 1998 to explore the possible methodologies to market and scientifically certify foods with health benefits. Chapter 3 is called ‘Health Benefits Looking for a Science’ and it consists of an in-depth analysis of what these methodologies of functional food science are. Is it a science in the first place? We will see that it is not, and to avoid further confusion with science, I propose the term stratagem to characterize the specificity of functional food science as proposed by a community of nutritionists under the aegis of ILSI Europe. A stratagem is a way of guiding and tricking one’s opponent in warfare. The particularity of the functional food stratagem is that it guides the beholder towards a new concept of health, while excluding the realm of clinical manifestations as much as possible. The body cannot really manifest itself or object in a stratagem that focuses on markers that only index the body and relate statistically to symptoms. Though the body can never be entirely excluded, it becomes clear that for functional food nutritionists an ideal demonstration, an evidence-base, for ‘health’ would be one without the interference of bodies. In Chap. 4, ‘The Common Market and the Rise of Information’, we move to a different space and practice: law and the courtroom. We start with an anthropological riddle: how is it that a topic which involves health, bodies, and food can be considered as a matter of ‘information’ by lawyers and policymakers? I trace the history of EU food legislation and discuss a seminal case for health claims before the Court of Justice of the European Union (CJEU). I discern a specific articulation between law and politics in the project of the EU common market, which allows us to understand why no objections can be made against health claims on the ground that they venture into the realm of medicine and may mislead consumers or even pose a problem to public health. In Chap. 5, ‘Liberal

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Food, Liberal Consumers’ we change rooms and audience again and we enter the next phase of the health claim’s coming of age as a truth-­ statement on the market. We are in the European Parliament where the internal consistency of EU law is not the main issue, as in the CJEU, but the making of new laws with the means of politics. I will discuss the debates that took place in the Parliament around a draft proposal by the EU Commission to regulate health claims once and for all. It is here that we observe how a juridical-political commitment to the regulation of information affects what can and what cannot enter into politics. Nothing less than food itself is excluded from the regulation as health claims are regulated with respect to food components, ingredients, nutrients. We will nuance this exclusion, because, just like the body, food can never be entirely excluded. Food, we will see, becomes information’s constitutive outside. But information also has an addressee, and that is the consumer. The consumer is a remarkable kind of figure and a cornerstone of the liberal market economy. The consumer is a rational choice-maker, even though legal experts question the limits of that rationality according to the constraints of different types of legislation. Rationality is a function of the mind, and the history of the sciences and medical anthropology show how the body has always been considered, in liberal and Enlightenment thinking, as a source of interference in rational judgement. With health claims, however, one can no longer ignore that the consumer has a body. It is here that we discern something very peculiar about health claims: they assume situations of choice while referring to the constitutive outside of those very situations: food as a complex of nutrients on the one hand, and the body as a complex of often unpredictable metabolic processes on the other hand. It would seem that science is called upon, not to protect consumers, but to protect the nature of information as a cornerstone of the market, in a situation where references to troublesome entities such as the body and food put the consumer constantly at risk of being misled by information. Chapter 6 focuses on the events once the actual EU Health  Claims Regulation took effect. The Regulation stipulates that a scientific assessment of health claims is necessary in a premarket approval procedure. But which kind of science can demonstrate that healthy people become … healthier? I will discuss clinical trials as particular modes of socialization: they socialize molecules or food ingredients and human bodies into  a common stratagem. The chapter is called ‘Bodies of Evidence’ in all senses of the term ‘bodies’. EFSA is accused of applying the criteria of evidence-­ based medicine, while a community of nutritionists says that nutrition

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needs its own methods, experts, and type of evidence. The ILSI functional foods community from Chaps. 2 and 3 reorganizes itself under a programme of ‘evidence-based nutrition’. A contrast emerges not only between evidence-bases, but between bodies as well. I make a distinction between what I call the clinical body in evidence-based medicine and the indexed body in evidence-based nutrition. The latter ‘body’ is present only through indexes or signposts. It has little or no capacity to respond in trials: the indexed body is the body that must retreat into the background to make room for ‘health’. In Chap. 7, ‘Territorial Disputes’, we switch rooms and audience one last time, and we move to the Royal Netherlands Academy for the Arts and Sciences to assist in a debate on evidence-bases between two opposing protagonists. If clinical trials socialize humans and food in specific ways according to their design, then what the debates at the Royal Academy suggest is that stratagems for evidence also socialize their human promotors in a particular way. I briefly discuss the concept of a moral economy, which covers the empirical observations in the debate quite well. The problem is that it covers or conceals practices and things too much by focusing on morality as an exclusively human and mental affair. It puts aside the body again and food ingredients. At this point, we are in a better position to take on the full load of a term that occurs occasionally throughout the pages of this book: territories. The problem of the constitutive outside is a problem of de- and reterritorialization that involves food, bodies, and their common socialization not only in stratagems of evidence, but in food production systems and markets, which brings us full circle to the origins of functional foods in sugar. In Chap. 8, ‘Health Without Bodies’, I resume the main findings of this book and tease out some of their implications.

References Barry, A. (2006). Technological Zones. European Journal of Social Theory, 9(2), 239–253. Brody, J. E. (1977) Villain in Disguise? New York Times, May 25, p. 53. Caliskan, K., & Callon, M. (2009). Economization, Part 1: Shifting Attention from the Economy Towards Processes of Economization. Economy and Society, 38(3), 369–398. Caliskan, K., & Callon, M. (2010). Economization, Part 2: A Research Programme for the Study of Markets. Economy and Society, 39(1), 1–32.

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Chadwick, R. et  al. (2010) Functional Foods. Berlin: Springer, Coll. Wissenschaftsethik und Technikfolgenbeurteilung Band 20. Cochoy, F., Deville, J., & McFall, L. (Eds.). (2017). Markets and the Art of Attachment. Routledge. Coppens, P., Bijlsma, M., Craddock, N., Herreman, I., Hurt, E., Le Bail-Collet, Y., & Loosen, P. (2001). Are Foods Bearing Health Claims Medicinal Products? Scandinavian Journal of Nutrition, 45, 140–145. Davis, T., & Schneider, T. (2008). Making Sense of Health Foods: A Historical Analysis of Food Advertising in The Australian Women’s Weekly in the Three Post-War Decades. In M.  Koc, R.  MacRae, & K.  Bronson (Eds.), Interdisciplinary Perspectives in Food Studies (pp. 47–59). McGraw-Hill Ryerson. Demortain, D. (2007). The European Medicines Agency (EMEA) and the European Food Safety Authority (EFSA). In D.  Benamouzig & O.  Borraz (Eds.), Food and Pharmaceutical Agencies in Europe. Publications de la MSH-ALPES. Diplock, A. T., et al. (1999). Scientific Concepts of Functional Foods in EuropeConsensus Document. British Journal of Nutrition, 81(1), 1–27. Dodier, N., & Barbot, J. (2008). Autonomy and Objectivity as Political Operators in the Medical World: Twenty Years of Public Controversy about AIDS Treatments in France. Science in Context, 21(3), 403–434. Dumit, J. (2012). Drugs for Life. How Pharmaceutical Companies Define our Health. Duke University Press. EFSA. (2011). Scientific Opinion on the Substantiation of a Health Claim Related to Water and Reduced Risk of Development of Dehydration and of Concomitant Decrease of Performance Pursuant to Article 14 of Regulation (EC) No 1924/2006. EFSA Journal, 9(2), 1982. European Commission. (2010). Functional Foods. Directorate General for Research. Foucault, M. (1971). L’ordre du discours. Gallimard. Foucault, M. (2001). La naissance de la médecine sociale. In Dits et écrits II, 1976–1988 (pp. 207–228). Quarto Gallimard. Foucault, M. (2002 [1969]) The Archaeology of Knowledge. Routledge. Frohlich, X. (2011). Imaginer des consommateurs, constituer les sujets: l’étiquetage nutritionnel aux Etats-Unis, 1945–1995. Science de la Société, 80, 11–27. Frohlich, X. (2017). The Informational Turn in Food Politics: The US FDA’s Nutrition Label as Information Infrastructure. Social Studies of Science, 47(2), 145–171. Hatzhold, T. (2008). Foreword. In J.  Howlett (Ed.), Functional Foods. From Science to Health and Claims. ILSI Europe. Heasman, M., & Mellentin, J. (2001). The Functional Foods Revolution: Healthy People, Healthy Profits? Earthscan.

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Health Claims Regulation. (2006). Regulation (EC) No1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. OJ L 404/9 Jacobson, M., & Silverglade, B. (1999). Functional Foods: Health Boon or Quackery? British Medical Journal, 319(7204), 205–206. Jauho, M., & Niva, M. (2013). Lay Understandings of Functional Foods as Hybrids of Food and Medicine. Food, Culture and Society: An International Journal of Multidisciplinary Research, 16(1), 43–63. Katan, M., & De Roos, N. (2004). Promises and Problems of Functional Foods. Critical Reviews in Food Science and Nutrition, 44(4), 369–377. Latour, B. (2018). An Inquiry Into Modes of Existence. An Anthropology of the Moderns. Harvard University Press. Laurent, B., & Mallard, A. (2020). Labelling the Economy. Qualities and Values in Contemporary Markets. Palgrave Macmillan. Lawrence, M., & Germov, J. (2004). Future Food: The Politics of Functional Foods and Health Claims. In L.  Williams & J.  Germov (Eds.), The Social Appetite. A Sociology of Food and Nutrition (pp.  119–147). Oxford University Press. Lehenkari, J. (2003). On the Borderline of Food and Drug: Constructing Credibility and Markets for a Functional Food Product. Science as Culture, 12(4), 499–525. Liebman, M. (2012). The Water Claim Proceedings: Questions of Admissibility. European Food and Feed Law Review, 7(5), 273–278. Mariotti, F., Kalonji, E., Huneau, J. F., & Margaritis, I. (2010). Potential Pitfalls of Health Claims from a Public Health Nutrition Perspective. Nutrition Reviews, 68(10), 624–638. Mol, A. (2008). The Logic of Care. Health and the Problem of Patient Choice. Routledge. Mol, A. (2021). Eating in Theory. Duke University Press. Moran-Thomas, A. (2019). Travelling with Sugar. Chronicles of a Global Epidemic. University of California Press. Nestle, M. (2007). Food Politics. How the Food Industry Influences Nutrition and Health. University of California Press. Ostberg, J. (2003). Functional Foods: A Health Simulacrum. Advances in Consumer Research, 30, 129–134. Penders, B., & Nelis, A. (2011). Credibility Engineering in the Food Industry: Linking Science, Regulation, and Marketing in a Corporate Context. Science in Context, 24(4), 487–515. Perreti, J. (2012) What Caused the Obesity Crisis in the West? BBC News, June 13. Schleifer, D. (2012). Categories Count: Trans-Fat Labeling as a Technique of Corporate Governance. Social Studies of Science, 43(1), 54–77.

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Schneider, T. (2005) ‘Functional Foods: Are They Sociologically Interesting?, Paper Presented at the TASA 2005 Conference, University of Tasmania, 6–8 December 2005. Scrinis, G. (2008a). On the Ideology of Nutritionism. Gastronomica, Winter 2008. Scrinis, G. (2008b). Functional foods or functionally marketed foods? A critique of, and alternatives to, the category of “functional foods”. Public Health Nutrition, 11(5), 541–545. Scrinis, G. (2013). Nutritionism. Columbia University Press. Stein, A. & Rodríguez, E. (Eds) (2008) Functional Food in the European Union. IPTS Joint Research Centre, European Commission, Brussels. nr. 23380. Stengers, I. (2017). Another Science is Possible. A Manifesto for Slow Science. Wiley. Stengers, I. (2023). Virgin Mary and the Neutrino. Duke University Press. Taubes, G. (2011). Is Sugar Toxic? New York Times, April 13. Troyer, R., & Markle, G. (1984). Coffee Drinking: An Emerging Social Problem? Social Problems, 31(4), 403–416. Weiner, K. (2010). Configuring Users of Cholesterol Lowering Foods: A Review of Biomedical Discourse. Social Science and Medicine, 71, 1541–1547. Weiner, K., & Will, C. (2015). Materiality Matters: Blurred Boundaries and the Domestication of Functional Foods. BioSocieties, 10(2), 194–212. Westfield, B. (2013). Sugar Is ‘Addictive and the Most Dangerous Drug of the Times’. Telegraph, September 17. Williams, P. (2005). Consumer Understanding and Use of Health Claims for Foods. Nutrition Reviews, 63(7), 256–264. Winnickoff, D., & Bushey, D. (2010). Science and Power in Global Food Regulation: The Rise of the Codex Alimentariu. Science, Technology and Human Values, 35(3), 356–381.

CHAPTER 2

Sugar’s Legacy

Grounding the Story There are many possible beginnings to the story of health claims, or functional foods, or both. Different accounts exist, but it is important to keep in mind that establishing a narrative beginning implies taking a position that already qualifies the subject in some ways rather than others. When the CEO of the Kraft food company proudly cites Hippocrates in a preamble to a volume on functional foods, he places his company in a lineage with roots in Ancient Greece, and he declares a form of kinship between his food company and the father of Western medicine: Let food be your medicine and medicine your food (Hatzhold, 2008). Are Kraft, Nestlé, Danone, and Unilever the rightful heirs to an ancient knowledge on the relations between health and food? It makes the idea that food might have (semi-)therapeutic properties sound very natural. The history of the health claim is what interested actors invent and mobilize in order to justify health claims’ importance and the appropriate ways to regulate them accordingly. Japan would be another place to start, as it is one of the first countries worldwide that established a specific legislation for food with specific health properties. Japan will be part of the modest origin story that I am about to sketch out in this chapter, but I choose another entry point which is a Belgian sugar company. My aim is not to honour that company, or

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Belgium, for any particular reason, but to place the origins of health claims and functional foods within sugar production. From a factual perspective, there are a number of persons, institutes, and relations between the sugar company in the town of Tienen, and the European Institutions in Brussels, that help account for the emergence of ‘functional food’ as a concept tailored to European legislation. Part of this chapter will deal with those factual relations. From a theoretical perspective, these relations matter in ways that are more than factual, because it directs our attention to how food ingredients, and sugar in particular, become socialized or re-­ socialized, and how concepts such as ‘functional food’ help them with this. With socialization, I do not mean that food acquires social and cultural meanings, or that food is subject to different consumer perceptions. I do not wish to give a symbolic reading of what food may represent to people, or place food in a sociocultural ‘context’. Food does not require an additional layer of meaning or interpretation in terms of social order, because it is social order. Food is a sociomaterial composite, a product resulting from historical processes of production, a condensed politics of metabolism. In this book I want to tease out the politics, meanings, and morals that have shaped health claims as a particular type of statement— particular because its apparent simplicity as a phrase hides a complex metabolic relation between food and the human body. The governance of the health claim implies establishing a regime of truth around that complex relation—a regime of truth woven into the fabric of the EU common market. Health claims are considered by most as a mere additional layer of information, or promotion, on a food label. From that perspective, the main issue with health claims is the question whether the information is true, false, or misleading. Rather than taking ‘information’ for granted, I wish to ask what information is and how the mobilization of ‘information’ (re-)socializes food itself. When it comes to the verification of information—the scientific assessment of health claims—I ask how food and bodies become socialized in procedures, protocols, practices, and stratagems of scientific proof such as clinical trials and meta-analyses of scientific evidence. But before delving into the nature of information, scientific evidence, and how they developed over a specific course of events, we must make a start that grounds the overall story. Sugar grounds both the chronology of events in this book and the theoretical purport of it. The development of the functional foods concept is directly related to sugar production, and the key events that I will focus

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on in this chapter put forward some of sugar’s characteristics that relate the molecular and the social—or rather, characteristics that result from the historical blending of both. In Sweetness and Power, anthropologist Sydney Mintz (1985) writes a history of sugar and shows, first and foremost, that sugar’s omnipresence in contemporary societies cannot be simply ascribed to the fact that humans like sugar. It should not be confounded with, or explained by, a natural human liking for sweetness. Sweetness may be something that has naturally grown to human liking, but sugar or sucrose as we know it today is not the only source of sweetness. Mintz asks why sugar came to stand for sweetness in the first place, and how sugar evolved from a rare and luxury condiment to a working class necessity and, finally, a product of mass consumption. For most of its history, sugar was rare and used as medicine for different kinds of ailments of the throat, stomach, and eyes. Sugar’s status as medicine or food was the subject of debates in the Middle Ages from the twelfth century onward. Thomas Aquinas conveniently reasoned that it is medicine rather than food, so that one might consume it during the fast. By around 1650, sugar was used as a luxury spice by the English nobility while the substance also retained its status as a drug food imported from the colonies. By 1800 however, sugar had become a necessity for all English, and sucrose composed about 1/5 of the English diet a century later in 1900. Mintz argues that sugar production and consumption have co-developed with industrial capitalism, and that capitalism was not a context in the backdrop that provided the specific conditions of sugar production. Sugar production shaped capitalism and industrialism: ‘At the production end, sugar early became one of the leading motivations for making overseas agricultural experiments of a mixed sort—that is, with capitalist means and unfree labour. At the consumption end, it was […] one of the first items transformed from luxury to necessity, and thereby from rarity to mass-produced good, a transformation embodying both the promise and the fulfillment of capitalism itself’ (Mintz, 1985: 196). Mintz describes the plantations of the seventeenth century as a synthesis of field and factory, and as one of the first industrial enterprises of the ‘pre-industrial period’. Anna Tsing analyses sugar cane plantations in the fifteenth to seventeenth centuries as one of the first experiments in making production scalable (Tsing, 2012). Scalability implies that a specific process of production can be relocated to other ecologies and parts of the world without significant transformations in the production process itself. This is not evident and it requires a particular type of organization of labour and materials to create an environment that remains sealed-off

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from social and ecological ties that might otherwise alter the production process. ‘[T]he plantations were organized to foster alienation and thus enhance control’ (Tsing, 2012: 512). Sugar itself, however, gradually underwent a change in status in society, and it transformed society itself, attuning English factory labourers to the requirements and working rhythm of machines. Mintz again: ‘[T]he introduction of sucrose made it possible to raise the caloric content of the proletarian diet without increasing proportionately the quantities of meat, fish, poultry, and dairy products’ (p. 193). Sugar was accommodated to new emerging patterns of time and working regime, and sugar’s spectacular global spread throughout the nineteenth to twentieth centuries has altered the timing of meals, their composition, and our diets. Today, meat, poultry, fish, and dairy products have also become products of industrial mass-consumption but sugar has remained firmly in place not only for its taste but also for its technological properties that, for example, allow for the caramelization of battered foods (and keeping the inside juicy), enhancing mouth-feel by making liquids feel ‘heavier’ and more satisfying, or by enhancing what food technologists call ‘go-away’—the feeling that food disappears from the mouth at swallowing, rather than sticking inside the mouth as, for example, peanut butter would. This raises the question whether sugar simply has all the properties that we naturally appreciate, or whether these sensorial appreciations stem from our increasing exposure to sugar—that sugar has altered how we think food should taste and feel. Mintz described a transformation of society through sugar: a transformation of working rhythms, dietary patterns, food composition, and the advent of capitalist patterns of production and consumption. What matters here is not the question whether sugar ‘caused’ these transformations, but rather the idea of transformation itself: a changing of forms from sugar cane, and later sugar beet, to molasses, liquid syrups, and crystalline powder that went on a par with a shifting of patterns in relations of power, labour, and consumption. Transformation means that work is being done to achieve something and that this work changes the initial situation. It is in this sense that I will use the term socialization in this book: when something becomes socialized it does not simply mean that it is taken up in a ‘given society’ but that it creates a new situation. Mintz’s work describes the historical socialization of sugar. In line with actor-network theory, I take the term ‘social’ as an operator of connections or associations across different entities and objects, and not as a domain that is reserved for human interaction alone (Latour, 2005). Socialization, in that sense, is

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never acquired and needs constant work and mobilization for the connected parts to hold together. This means that the socialization of sugar is as intense and intricate a work in one specific time and place as it is when we consider its historical development as Mintz did. Grounding our story of functional foods and health claims means finding a local anchoring point, a relevant time and place that takes the story forward in such a way that we cannot take the liberty of easily distinguishing the ‘detail’ or ‘anecdotal’ from the so-called ‘bigger story’. Relevance is not a matter of size but of relations. So let us start in the provincial town of Tienen in Belgium with its sugar factory and its sugar museum.

The Socialization of Sugar For the municipality of Tienen, home of the biggest sugar refinery in Belgium, sugar is entwined with local history. The sugar refinery of Tienen brought industrial development to a nineteenth-century agrarian community, employment, local festivals with fireworks in the early twentieth century, and a rock festival today called Suikerrock (Sugar Rock).1 In 2002, the municipality opened a museum devoted to sugar and its local history. It is worthwhile making a brief stopover at this museum to refine, a bit better still, the concept of ‘socialization’ that runs through this book. One might have the impression that socialization, understood as connective work, implies adding things up: adding relations to relations. But equally important, especially for our story on food ingredients and their relation to health, is that socialization also involves barring existing relations; excluding some things while including others. As I mentioned earlier when referring to the work of Anna Tsing, making sugar production scalable has meant creating an environment that remains sealed-off from social and ecological ties that might otherwise alter the production process. The sugar museum is not about scalability as such, but it points to particular relations of inclusion and exclusion in the celebration of sugar—in keeping sugar alive and preserving it from moral attack. I visited the museum almost ten years after its opening, when the construction works for a  food innovation campus  had started in the same town of Tienen. In the exhibition rooms, the relation of the factory to community life is evoked through different aspects: labour and harvesting 1  The refinery is now part of the German Group Südzucker, the EU’s largest sugar producer.

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techniques, sugar beet types, local political personalities, and historical events financed by the sugar factory, displayed on old posters, such as local fairs, festivals, and fireworks. Two exhibition rooms, however, cut the threads with community life and establish a very different connection between sugar and humans. This interruption is marked by the voice of Professor Zucchero, the audioguide: ‘Silence, dear visitor, only silence is appropriate here. We have entered the sanctuary of the sugar factory … the laboratory!’. It is interesting that the guide should be a scientist. He is a typical nutty professor who has privileged access to what sugar and sweetness are all about: a molecular connection. It is interesting also that the visitor should be silent. The eye-catcher in the room is a giant microscope: a macroscope, if you will (Fig. 2.1). It certainly catches the visitor’s eye, and the play of scales transforms the visitor into an eye, turning his/her entire body into a witness of the molecular miracle of sugar, the tango d’amore, as the professor says, between glucose and fructose. The visitor is allowed

Fig. 2.1  The macroscope (photo by author)

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to witness the spectacle in respectful silence. It is not entirely clear what sort of laboratory this is. The only things on display are different types of sugar, more or less refined. There are also some antique measuring devices. An explanation is provided about inulin as well, a sugar replacer with alleged health benefits for your intestinal flora, developed by a spin-off of the Tienen sugar refinery in the 1990s. So it would seem that research is carried out here as well. But why are we asked to keep quiet in the laboratory? Isn’t this the place where instruments are adjusted and cursed upon, results discussed, and questions raised? Where are all the people? We see none of Zucherro’s colleagues at work, but only mute objects that relate to sugar in its different molecular and macroscopic forms. A bit further down the museum, we enter a different room and here, the visitor has the authorization to speak again, but in a very specific mode. A display reads: ‘Opinions on the effects of sugar on health vary widely…. [W]e hope that you, as the judge, will make a reasonable stand for sugar’ (Fig. 2.2). The quote comes from an information board, the first of a series of boards that present scientific controversies on sugar in the form of court cases. For each case, there is an imagined attorney general accusing sugar of being bad for one or other aspect of health. Next, the ‘sugar lawyer’ responds by putting things in perspective. For the final verdict, the visitor’s speech is restored but in a very specific mode: that of a judge. After being reconfigured to a witnessing organ of perception in the laboratory, the visitor is now rescaled to his normal bodily proportions, and a shift is made from the ability to perceive to the competence to judge.2 Here we are no longer in the secluded space of the lab but in what seems to be a public space, where all sorts of rumours, opinions, data, and eating habits abound, and we are asked to balance and judge. A visual cue, however, sharing the room with the courtroom cases, is proposed to help the visitor with this difficult task. In a corner easily visible from all points of view, we see two real and full-sized exercise bicycles (Fig. 2.3). How is it that exercise bicycles can be incorporated in a museum devoted to sugar? The simple answer is that the museum wants to convey the message that physical exercise is as important to health as the food we eat. 2  I want to suggest that individuals’ critical competencies, enabling them to judge, are hijacked, deformed, and put on stage again through the figure of the ‘consumer’. Likewise, in neo-management practice, a version of the notion of ‘competence’ is mobilized that takes advantage of the vagueness with regard to its requirements, in contrast to officially agreedupon qualifications. See Boltanski and Chiapello (2005), for example.

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Fig. 2.2  Sugar, health, and lady justice (photo by author)

Sugar itself cannot be responsible for obesity or diabetes. Things must be ‘put in perspective’ if we want to judge the health risks of sugar properly. Yet, putting things in perspective or ‘in their context’ is not about simply standing back and looking at the bigger picture. The work that the museum does is creating perspectives by weaving and undoing relations, and by literally altering the visitor’s viewpoint through plays of scale, vision, and rhythm.

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Fig. 2.3  Exercise bikes in the museum (photo by author)

The two exhibition rooms make a number of interesting moves in terms of scales and rhythm. First, there is the alternation between speaking and silence. This alternation occurs not only between spaces—the lab or public space—but also between concerns. The concern in the laboratory is the delicate process of sucrose production. Silencing the visitor means rescaling him to the size of a microscope and folding him up so that only his eye remains. Historians and philosophers of science argue that experimental apparatuses not only produce data or ‘matters of fact’, but also shut the mouths of critics (Stengers, 2000). The history of experimental science shows that knowledge and social order are intimately linked: who can talk when and where and pose legitimate problems (Shapin & Schaffer, 1985)? The sugar museum also has its way of distributing speech and silence and framing legitimate problems. The lab of the sugar factory is more than a laboratory: it is a sanctuary. We can watch, but not meddle in sacred affairs: the play of scales and silence allows objects to articulate a moral code that connects knowledge and social order.

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By contrast, in the second room, all sorts of opinions abound. Statements about the health effects of sugar are presented as legitimate concerns, albeit for private consideration. The visitor is invited to make a private and singularized judgement in public space. It is through the individual that things can be ‘put in perspective’, and more particularly through the exercise bicycles. Is sugar bad for my health? It depends. Do I exercise enough? By privatizing these questions, the museum bypasses the formulation of collective concerns about sugar and health. It is up to individuals/visitors to make up their own minds about health and healthy living. The paradox of this museum is that nearly all exhibition rooms celebrate sugar as a collective phenomenon. The visitor appreciates how sugar changed the face of a once-agrarian town and established a network of dispersed refineries, sugar beet cultivations, and a flux of beets and workers within a broader geographic region. Sugar has tied people together through local festivities, right up to today’s Sugar Rock festival, which is sponsored by the factory. But as soon as we approach sugar itself, strange things happen. Our social ties with sugar are cut. First of all, sugar becomes a matter of science: not just chemistry, but sacred chemistry that we should not meddle with. Second, when we touch upon the question of sugar’s health risks, our sweet molecule is not allowed to partake in social life either. When asked to make a judgement in front of an exercise bike, one may wonder what happened to all the human, technical, and political resources necessary to make sugar’s existence possible and virtually omnipresent in packaged food products. In sum, the perspectival work of this museum articulates a political difference between sugar’s modes of socialization: the celebration of collective accomplishment when it comes to production; individual choice when it comes to consumption and health. Mintz observed that over the course of its long history, sugar has shown a ‘near invulnerability’ to moral and religious attack. It was long considered medicine, yet its effects being less visible than those of, for example, alcohol, made it seem less dangerous, less proximate to medicine. Thomas Aquinas, as already mentioned, considered it to be food so that it could be consumed during the fast. Ambiguous classification was favorable to the proliferation of sugar, and this has been crucial for the sugar industry to develop new nutritional concepts, as we will see in the next section.

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Transforming Sugar Somewhere around the turn of the 1980s into the 1990s, Marcel Roberfroid, a toxicologist at the Université Catholique de Louvain (UCL) campus in Brussels, was contacted by an acquaintance who was, at that time, head of the research unit of Belgian’s largest sugar company: the Tienen Sugar Refinery.3 In the 1980s, sugar sales were declining, ‘sugar-­ free’ became a new demand, and the sugar industry developed a strong interest in toxicology. But unlike for example Coca-Cola in the US, the Belgian company was not intent on disputing toxicological evidence. Coca-Cola had indeed engaged in such a battle over the effects of caffeine, and the then vice-director of the company had established a corporate lobbying group to that effect: the International Life Sciences Institute (ILSI), to which I will return shortly. The Belgian sugar company followed a different strategy. They hired the Boston Consulting Group to draw up a prospective and innovative product plan for them, guided by the question ‘what will consumers want in the year 2000?’. One of the ‘opportunity spaces’ that the consulting group identified together with the research unit of Tienen Sugar was the area of ‘health’. And ‘digestive health’ more precisely. It appeared that Japanese scientists had been working on fructo-oligosaccharides (FOS) and had developed quasi-therapeutic products on the basis of FOS that qualified as ‘Foods for Specific Health Uses’ in Japan’s food legislation. Could sugar once more become medicine, as it was long ago in the Middle Ages (Mintz, 1985)? Or could a derivative of sugar turn the twentieth-­century food industry into the lawful heirs of Hippocrates? The sugar company and the consulting group agreed that it was worthwhile to find out more about this, and they assembled a small delegation to go to Japan for a brief exploratory mission. Tienen Sugar, sensitive now to toxicological matters, wanted someone like Roberfroid to be part of that mission to advise on the composition and toxicology of these Japanese FOS. There was indeed some mistrust with regard to Japanese science, as one R&D manager of Tienen Sugar’s research unit put it to me: ‘those Japanese papers, we don’t always trust what’s in there’. I don’t know why they nurtured such mistrust, but one way of understanding that statement is to remember that Tienen Sugar wanted to control and refine its science 3  The historical reconstruction of events is based on personal interviews with Roberfroid and a former R&D person at the Tienen Sugar Refinery.

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until it obtained something of value to its own purposes, not unlike the factory’s process of refining sugar itself. An association between health and what would later be referred to as ‘sound science’ was in the making. To cast a critical eye on Japanese science, Tienen Sugar did not choose any toxicologist: they contacted Roberfroid. Roberfroid knew a lot of people and was involved in many networks. At the time when his acquaintance of Tienen Sugar contacted him, he was member of the Board of Directors of the European branch of the International Life Sciences Institute: ILSI Europe. And here we come full circle, to the lobbying group and corporate think tank that was created to produce counter expertise about the effects of sugar and caffeine in Coca-Cola in the US. But before looking deeper into how ILSI operates as an organization, let us see what the Belgian delegation of sugar company representatives, consultants, and toxicologists took home from Japan.

From Sugar to Prebiotics The Belgian delegation took home the idea that fructo-oligosaccharides might have beneficial effects on gut flora and host health. But the emphasis must be put right: the reason they went to Japan was because research there seemed to indicate that fructo-oligosaccharides (FOS) might have beneficial effects on gut flora and host health. FOS can be synthesized from sugar by adding one, two, or three units of fructan. Specific chemical bondings make these molecules indigestible and low caloric, but they are presumed to be taken up by gut bacteria which are able to digest them. The hypothesis of beneficial action of FOS is that it stimulates the growth of bacteria in the colon, such as Bifido bacteria, that are beneficial to the host by way of their secretions. Japanese studies had put forward the role of Bifido bacteria in trials with volunteers, and other studies had shown that FOS are ‘Bifidogenic’. Tienen Sugar soon realized that there was an easier way to obtain FOS than by synthesizing them: a specific type of FOS called inulin is naturally present in chicory root. This root thrives in the same type of soil and climatic conditions as sugar beet, where it had already been cultivated in the past. So the sugar company established a small production unit to extract inulin from chicory root, and the latter could be cultivated along with sugar beet in the same geographical region, indeed in the same very small country where the farthest point away from Brussels is barely a two hours’ drive.

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While chicory root and sugar beet grew together peacefully in adjacent fields—their green loaves waving indistinguishably for the untrained eye— their uses are distinct, and conceptualizing that distinction was part of the R&D project of Tienen Sugar. In other words: while sugar beet continued to be used to make sugar, chicory, and the inulin extracted from it needed a nutritional concept not only to sell it, but to make it part of a new and larger class of molecules—a larger class that might itself give rise to new applications. In 1995, Marcel Roberfroid published a paper in the Journal of Nutrition with British researcher Glenn Gibson in which they coined the term prebiotics (Gibson & Roberfroid, 1995). From this paper onward, inulin became a ‘prebiotic’. In contrast to the more widely known probiotics, prebiotics are not bacterial strains but molecules that, according the concept, feed the gut microbes. So instead of introducing new strains of beneficial bacteria into the gut, prebiotics would nourish the existing populations that are naturally beneficial to host health. The term prebiotics was introduced as a generalizing concept; a prospective class of molecules from simple to, potentially, more complex carbohydrates. The paper was a review study, comprising Japanese research and some of Gibson’s own research on the effects of nondigestible oligosaccharides and FOS on the human colon. The paper is as much prospective as it is descriptive of selected existing research. In this blend of description and prospection, the paper also makes specific use of existing chemical classifications to place molecules with different dimensions under the same name: ‘The term fructooligosaccharides will be used here to encompass both oligofructose and inulin, which are commercially available as RAFTILOSE® and RAFTILINE®, respectively’ (p. 1407). These two types of FOS are the products that Tienen Sugar had started developing under its factory branch called ORAFTI at the time (now Beneo). Later, in the concluding section of the paper, they state: ‘fructooligosaccharides such as oligofructose and inulin are naturally occurring ingredients for which convincing experimental evidence in favour of a health-promoting effect is available. These fructooligosaccharides thus belong to the class of prebiotics […]’ (p. 1410). It is the word ‘thus’ in the citation that gives the impression that prebiotics were a pre-existing accepted ‘class’ of molecules all along, while the paper is in fact introducing prebiotics as a new concept. That concept is a physiological one and not a chemical one: it classifies molecules that vary in chain length according to their presumed physiological effects on the body. Why this classification work? A paper written by a colleague of Roberfroid and Gibson, who has also been involved in the

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research piloted by Tienen Sugar, states that ‘[t]erminology based on physiological properties helps to focus on the potential health benefits of carbohydrate, and identify foods that are likely to be part of a healthy diet’ (Cummings & Stephen, 2007: S10). A terminology based on physiological health potential, conveniently steered away from the term ‘sugar’ or ‘sugars’ in times when sugar’s reputation was at stake. This is classification politics and there was a more technical reason for it as well. As a former R&D director from Tienen Sugar told me, lobbying work in different Member States of the EU was necessary to have inulin recognized as a ‘fibre’. The molecule chain length—the so-called degree of polymerization (DP)—plays a role in that definition, and fibres usually have a high degree of polymerization. Was inulin’s DP high enough to be classified as a fibre? Inulin’s recognition as a ‘fibre’ was at stake in terms of a cut-off point defined by DP. Inulin was close to that point and it has a higher DP than oligofructose which is, in terms of DP, much closer to the disaccharide we know as sucrose from sugar beet or ‘sugar’. DP thus became an operator to steer sugar-related molecules away from sugar as such, and towards the promising category of ‘fibre’. With inulin close to, and oligofructose farther from to the then accepted DP for fibres, another term was promoted to group sugar-derivates with different DPs like inulin and oligofructose under one single umbrella: ‘inulin-type fructans’. The modus operandi in these publications is devising new classifications to navigate chemistry and to blend it with physiological concepts, extending definitions where necessary and specifying when it can be branded. Roberfroid and Gibson conclude their paper: ‘[…] prebiotics […] and oligofructose and inulin in particular, thus have the properties of a health-enhancing functional food ingredient: a food ingredient that affects the functions of the body in a targeted manner so as to exert positive effects that may, in due course, justify health claims’ (Gibson & Roberfroid, 1995: 1410). In due course: the concept of a health claim was already shaping concepts of health and the body upstream, in tandem to new ways of classifying the material composition from simple to complex saccharides. Marketing is a material-semiotic socialization process.

From Prebiotics to Functional Foods As mentioned above, Marcel Roberfroid, now credited with his colleague Glenn Gibson to have introduced the term prebiotics, was on the Board of Directors of ILSI Europe when Tienen Sugar contacted him. This

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connection between persons mirrors the spatial and institutional proximity within a particular Brussels ecosystem. The ILSI Europe headquarters, Roberfoid’s toxicology department, the European Commission, and the European Parliament are physically proximate. On a map, you see the streets and metro lines connecting them over distances that range between 6 kilometres and a mere 200 m. By renting office space, lobbying groups tap into this system regulated by doors, badges, and taxi drivers. Today still, ILSI is located only yards away from the pharmacology department where Roberfroid was working at the time, on the Brussels campus of the Catholic University of Louvain (Université Catholique de Louvain—UCL). ILSI is on the Avenue E. Mounier, the main axis separating the campus in two halves. The campus is only a few metro stops away from Brussels’ European district, where the ‘European Commission’ occupies part of the city, distributed over a swathe of tall buildings, and a staff of roughly 32,000 people. The UCL campus in Brussels is home to the university’s life sciences and biomedical sciences departments and a university hospital. The campus also houses students in homes and there is office space to let for institutes and organizations of all kinds, such as ILSI.  On the Avenue E.  Mounier, ILSI strategically occupies office space between academic departments and the European Institutions—between the world of the life sciences and that of regulation and policymaking. This position is coherent with ILSI’s mission to ‘[foster] collaboration between the best scientists from industry, academia and the public sector to provide evidence-based scientific solutions and to pave the way forward in nutrition, food safety, consumer trust and sustainability’.4 This type of parlance is endemic to the interstitial spaces that lobbying groups, companies, and consultancy groups occupy near the seats of regulatory authority. In Brussels’ International Airport, tapestries of corporate promise accompany passengers through the long connecting corridors of the airport. But contrary to Monsanto’s and Syngenta’s pastoral images that gratify airport halls, ILSI does not invest in publicity. The organization does not propose any particular product to customers or clients, but it sustains a hybrid network of company representatives and academic scientists who write technical papers setting standards and methodologies to guide decision-making. ILSI is funded by large food and chemical companies, who pay in order to be members of the organization. Large, because smaller companies, one 4

 https://ilsi.eu/

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ILSI spokesperson told me, cannot afford the membership fee. ILSI has budget to rent office space, organize colloquia, print publications, and cover the travelling expenses of its affiliated experts. The organization does not pay affiliated experts as such, only its small body of permanent staff located at the UCL campus. That said, ILSI applied for EC project funding and obtained it for its project Functional Food Science for Europe (FUFOSE) that ran from 1995 to 1998. It is this project that took a further step of generalization: from this project onward, prebiotics were only one specific kind of functional food. The prebiotics concept had extended preliminary indications on the physiological properties of certain FOS to a potentially much broader set of food ingredients. The aim of the FUFOSE project was to search for other possible physiological concepts under the general term of ‘functional food’. The project resulted in a consensus-paper that formally describes what functional foods are, and how they could be scientifically assessed. We are going to look into the details of this consensus-paper, and how it conceives of food and the body, in the next chapter. Before that, it is useful to know more about the organization that gathered the authors and coordinated the four-year project that coined and defined functional food for the European market. ILSI’s official designation is that of a non-profit organization. Only recently, since 2019, has it been included in the EU Transparency Register identifying lobbying groups. As an NGO and not-for-profit organization that provides a ‘neutral platform’—dixit ILSI—for industry and academia to work on scientific topics relevant to public health and the environment, the organization was able to apply for EC funding with Marcel Roberfroid as its scientific representative and project lead. If it is clear that a lobbying organization is not neutral, the relevant question here is how their position articulates with the scientific concepts they propose. For that, we need an understanding of how ILSI operates, rather than relying on its official status or other possible definitions of what the organization is: a neutral platform, an NGO, a lobbying group, a not-for-profit organization, a corporate think tank, a stakeholder, an International Life Sciences Institute. What does ILSI do, where and how? When I first learned about the organization, it was through the many publications in peer-reviewed journals authored by affiliated scientists. They have an impressive portfolio of scientific publications indeed, but these do not necessarily bear the name of the Institute). In the field of nutrition science and functional food that interested me, many names started to sound familiar, with Roberfroid to begin with. So  I asked: is there a research team? Does the

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organization have labs or other research infrastructure? ILSI has regional branches all over the world and the organization refers to itself in terms of a community or a family even. There is a famous anthropological study by Benedict Anderson (1983) called Imagined Communities about the birth of nation-states and how it became possible to consider oneself as part of something that geographically spans beyond one’s local lifeworld and experience. The book is often misquoted by those who emphasize the role of human imagination as a particular faculty that makes identification with such a large ‘community’ possible. Anderson’s book, however, doesn’t deal with the imagination as such, but with particular forms of infrastructure that participate in delineating the contours of emerging nation states through forms of movement, such as patterns of travel; through representation in the printed press that juxtaposes events from different places on one same page; through administrative techniques such as census-making and cartography. These representations, numbers, juxtapositions, and patterns made it possible to imagine a varied set of things as pertaining to a nation. What matters is the fact that the imagination is channelled through these patterns, and not the fact that humans have imagination as a particular faculty. Anderson’s book arrived more or less at the time when the first contours became visible of what would later be called actor-network theory—an approach that not only ‘opens black boxes’ in scientific practices and technologies, but proposes an epistemic topography that traces how the ‘global’ or ‘international’ are performed through relations and networks that are made to exist by the work of specific, situated, and always local actors (Latour, 2005). ILSI and the concepts it proposes, such as prebiotics and functional foods, should both be treated in this same manner: there is a material infrastructure that makes it possible to imagine something like ILSI as an international organization in the first place, and ‘functional food’ as a scientific concept. Basic questions are in order: not what is ILSI, but where is it? Who is it? How is it? ILSI Europe is, first of all, 83 Avenue Mounier on the UCL campus in Brussels. Let us start there and then move on to ILSI’s conceptual work in the form of publications. I visited ILSI Europe at its headquarters in Brussels on several occasions, and here is an excerpt from my first visit which describes the office space they occupy and how I was received at the organization. It gives some first indications as to how the organization operates. ILSI doesn’t occupy an entire building, but only part of it. The building is not impressively tall, and my first surprise is the entry: a small vestibule with mail

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boxes and a vertical row of buttons—one button or buzzer for each floor. It is like visiting someone’s private apartment: you look for the name, press the buzzer and wait for someone to answer. In fact, the vestibule doesn’t have much more appeal or space than those of the student residences that dot the campus. Each buzzer has the name of an organisation and one of them is ILSI Europe. Indeed ILSI only needs one floor, and there are no laboratories. When I step out of the elevator, I walk into an open, luminous space with small, tidy offices on both sides, most of the doors invitingly open. One of the doors is closed—I would learn later that the Probiotics Task Force was having a meeting there. The atmosphere is rather quiet and relaxed, with people walking in and out of their offices, stopping for a chat with the receptionist who I only notice when I am already halfway through this central space, on my way to have a look at the shelves with brochures and printed ILSI publications on display. The receptionist tells me that the man who I came to see had cancelled the appointment. The receptionist is kind enough to see if anyone else is available to answer my questions, and finds two colleagues who invite me in their shared office “for the presentation”. “What do you already know about ILSI?” asks the senior scientist, an engineer in food processing then heading the Consumer Science Task Force. She launches a Power Point Presentation. I notice that both women have a francophone touch to their English, so I ask which language they prefer for the interview. They opt for English, as they are used to talking their specific jargon in English, and as it is compatible with the Power Point. Before explaining the first slide, involving three intersecting circles representing ‘academia’, ‘industry’, and ‘government’, the senior scientist asks me who I am, and what I want to know. I explain that I am an anthropologist, preparing a PhD on the history of functional foods. She thinks this is funny, because in her Consumer Science Task Force, she had already worked with an anthropologist. The aim of the project with the anthropologist had been to investigate how consumers understand health claims. Then the presentation starts:5

FM: So our Mission. So our mission is to improve public health and safety through the advancement of science. So we are a scientific organization, and what we want is to advance the scientific knowledge in nutrition and food safety, in order to make sure that policy decision-making is based on science. So that the people that have to take political decisions related to nutrition […] have all the scientific backgrounds. So we’re not here to provide any recommendation, or position or opinion. We’re here to provide scientific … ehm, facts.

5

 Transcription interview 26/11/10 at ILSI, Brussels. I anonymize with initials.

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FR (complements FM’s explanation): - and not to … not to … create any science. We are not a research institute. FM (confirms): No. FR: - in the sense that there is no lab, as you can see. FM: No actually we work, well that’s later in the presentation but I can explain it now, we work with experts. […] So on specific topics we invite experts and they produce review papers. So they take what is available in the scientific literature, and they apply it to a specific topic. So they take scientific basic information and put it together on a specific question that is raised by our members. FM: See? So it’s not creating new data, it’s taking the scientific data available and … put them together in a way that answers a specific issue. The explanation of the two scientists is quite clear: they are not doing science. They say so themselves, and their approach to ‘science’—or rather: scientific data—is indeed very different from what can be read in ethnographies of scientific work (e.g. Knorr-Cetina, 1983; Latour & Woolgar, 1986): they are not involved in a process of testing and hesitating, eventually leading to the qualification of data, but they start from data. They have a question, proposed by someone else (food companies), and they compile existing data without changing the question. An answer must be formulated with the data available. As the above description shows, I only saw a very small part of ILSI: the office that makes ILSI happen. No research is done in the office. Rather, it is a small coordination centre, where about ten people make phone calls, organize events and workshops, prepare publication layouts, maintain the website, and host small meetings. The aim is to bring together scientists from industry and universities in thematic task forces on the one hand and in bigger events or symposia on the other. The experts that ILSI gathers are not in-house experts, but task force members who meet at specific times and places, often outside the ILSI office. ILSI coordinates experts who do a specific kind of work. As my interlocutors say: this work consists of gathering existing data and ‘put them together in a way that answers a specific issue’. ILSI is not a neutral platform, but a mediating platform driven by the question: how can existing research and data be translated in a way that is of interest to the member companies (who set the agenda)? For Bruno Latour, the difference between an intermediary and a mediator is that the former can be said to simply pass on or relay information, while the latter transforms what passes through it (Latour, 2005). It may seem as though ILSI answers questions of interest to policymakers ‘to make

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sure that policy decision-making is based on science’, as my interlocutor said in the interview excerpt above. ILSI, then, would seem to act as a transmitter or intermediary between industry and policy. But as a mediator they make a twist along the way: they send answers to policymakers, based on questions posed by food and chemical companies. This means that ILSI doesn’t simply prepare and then ‘pass on’ information to policymakers. There is more than one ‘pass’ in the game, neatly expressed in French as a tour de passe-passe. In English that is called a conjuring trick. In ILSI’s publications, the questions and answers are invented at the same time, making the concepts the organization proposes particularly appropriate for political agenda setting.

From Experts as Individuals to Expertise as a Practice ILSI is a launching platform for technical concepts and a landing platform for travelling scientists. A characteristic of the experts who move in and out of ILSI’s expert groups is that they move in and out of many groups. They travel between all kinds of national and international organizations, advisory bodies, and technical committees. Sociologist and political scientist David Demortain (2011) proposes a characterization of these scientists, travelling between the Food and Agriculture Organisation (FAO), the World Health organisation (WHO), the European Commission, ILSI, national institutes, and advisory bodies of all sorts. They are experts, for sure, but how to characterize these experts as a collective, asks Demortain, many of whom personally know each other? He goes through a number of concepts in the social and political sciences that designate interdisciplinary groups and transnational scientific collectives such as ‘epistemic community’, ‘policy network’, and ‘transepistemic arena’. He opts for another term—‘invisible college’—that emphasizes the elite status of the individuals involved; their circulation (not belonging to one specific community); and their interstitiality. These three characteristics, and especially the interstitiality, explain better how these experts can exert influence on EU policymaking, because they are constantly on the verge of it. The invisible college is a term that distinguishes a community of individuals: they are part of the ‘college’ precisely because, as an individual, they occupy so many different positions, and because they are trained in different types of practices: scientific work at the university, policy advice, the coordination

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of projects, discussing regulations, and so on. ILSI meetings are full of people holding degrees in the life sciences. They are, in terms of qualifications, scientists. My question is into what kind of knowledge-making ILSI channels these individual experts? What is the type of practice that ILSI generates? Although ILSI is seen as an organization that (ab-)uses science in its core lobbying activities, I will insist in the following chapter that ILSI does not lobby through science but through something else, and I will try and avoid the term ‘science’ as much as possible. I do this for three reasons. The first is that, as we have already observed, and as will become clearer in the next chapter, mobilizing scientific terminology does not mean that there is a corresponding scientific practice at the basis of that terminology. Therefore, in the next chapter, I will propose the term stratagem for ILSI’s practice to avoid confusion with science. A second reason is that the term ‘science’, as we will discover, is a political operator in the debates on health claims. It is a conceptual resource used to enhance one’s own credibility and to de-credibilize others. From Chap. 5 onward, the term will be so ubiquitous that it is going to stand in the way of our analysis. Finally, my third reason has to do with how science is used as a conceptual resource by both lobbyists and their critics. If we maintain that corporate lobbyists relate to science, even by abusing or corrupting it, then debates will continue to revolve around epistemic and political virtue, corrupted versus good science, and conflicts of interest. The assumption that  science is to be protected by  policing institutional boundaries and individuals is the logic of the European Institutions, and it is a logic indifferent to how specific approaches oblige their practitioners in practice. Focusing  on practice, rather than individuals, I will not consider ILSI’s experts as scientists but as claim technicians. If the term ‘scientist’ may be justified by their university degree and CV, this does not accurately describe their practice when working with ILSI. So in the next chapter, we need to focus on the conceptual work that is done by ILSI.

References Anderson, B. (1983). Imagined Communities. Verso. Boltanski, L., & Chiapello, E. (2005). The New Spirit of Capitalism. Verso. Cummings, J.  H., & Stephen, A.  M. (2007). Carbohydrate Terminology and Classification. European Journal of Clinical Nutrition, 61(Suppl 1), S5–S18. Demortain, D. (2011). Scientists and the Regulation of Risk. Standardising Control. Edward Elgar.

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Gibson, G., & Roberfroid, M. (1995). Dietary Modulation of the Human Colonic Microbiota: Introducing the Concept of Prebiotics. The Journal of Nutrition, 125(6), 1401–1412. Hatzhold, T. (2008). Foreword. In J.  Howlett (Ed.), Functional Foods. From Science to Health and Claims. ILSI Europe. Knorr-Cetina, K. (1983). The Ethnographic Study of Scientific Work: Towards a Constructivist Interpretation of Science. In K.  Knorr-Cetina & M.  Mulkay (Eds.), Science Observed: Perspectives on the Social Study of Science (pp. 115–140). Sage. Latour, B. (2005). Reassembling the Social. An Introduction to Actor-Network Theory. Oxford University Press. Latour, B., & Woolgar, S. (1986). Laboratory Life. The Construction of Scientific Facts. Princeton. Mintz, S. (1985). Sweetness and Power. The Place of Sugar in Modern History. Penguin Books. Shapin, S., & Schaffer, S. (1985). Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life. Princeton University Press. Stengers, I. (2000). The Invention of Modern Science. University of Minnesota Press. Tsing, A. L. (2012). On Nonscalability: The Living World Is Not Amenable to Precision-Nested Scales. Common Knowledge, 18(3), 505–524.

CHAPTER 3

Health Benefits Looking for a Science

Although the International Life Sciences Institute (ILSI) insists strongly on the word ‘science’ in all of its communications and publications, we know now that it is not a research institute but a corporate lobbying group that builds networks and alliances with academic scientists in the fields of human nutrition and health. What is the part of ‘science’ in all of this? This question does not only apply to ILSI but it is one of the main questions in this book. At first sight, what ILSI does corresponds to what nuclear physicist Alvin Weinberg (1972) termed ‘trans-science’. Weinberg says that the relation between science and politics or decision-making is often divided into two neat compartments: scientists answer a question, and this serves the decision-maker as a means to political ends. Weinberg argues that political and societal questions—concerning public health for example— can indeed be formulated in scientific language, but that science cannot answer them. Managing a mixture of political considerations and scientific data is what Weinberg calls trans-science. It has also been called ‘regulatory science’ (Irwin et  al., 1997) and more recently ‘cameral science’ (Stengers, 2017). For reasons that will soon become clear in this chapter, I will drop the term ‘science’ altogether and I characterize ILSI’s work as a stratagem. A stratagem is like a strategy, but it conveys a form of trickery—the strategic art of guiding someone in a certain direction, which also means away from something else. The foundational paper that I analyse in this chapter proposes functional food as a new nutritional concept. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 K. Hendrickx, Health Without Bodies, Health, Technology and Society, https://doi.org/10.1007/978-981-99-4950-2_3

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Functional food, I will argue, is a stratagem that leads towards a version of health that is indexed or signposted by (bio-)markers, while moving away from clinical outcomes.

Nutritionism and Public Health Functional Food Science for Europe (hereafter: FUFOSE) was a four-­year project (1995–1998) to create a community of scientists around a concept: functional foods.1 The project resulted in the publication of a Consensus Document in the British Journal of Nutrition (Diplock et al., 1999). In this publication, the concept of functional food is proposed along with a working definition and the methods to validate that definition. This definition and the FUFOSE project are cited internationally in every review and manual on the subject of functional foods or health claims published after 1999. The FUFOSE project was larger in subject scope and human resources than ILSI’s punctual meetings and conferences. To obtain those resources, ILSI had applied for European funding. The aim of the FUFOSE project was to ‘establish a science-based approach for concepts in functional food science’.2 This was to be done by setting up an international and multidisciplinary European network of researchers in the life sciences. More specifically, the objectives of the project were: 1. to assess critically the science base required to provide evidence that specific nutrients and food components positively affect target functions in the body; 2. to examine the available science from a function-driven perspective rather than a product-driven one; and 3. to reach consensus on targeted modifications of food and food constituents, and options for their application. (Diplock et al., 1999: 1) The first point already illustrates ILSI’s conjuring trick: the answer is that specific nutrients and food components positively affect the human 1  The full name of the project: European Concerted Action on Functional Food Science in Europe. FUFOSE is the abbreviation used in publications of the Commission and of the project members. 2  Consensus Document, preface.

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body. The citation above mentions ‘target functions in the human body’ and I will give due consideration to ILSI’s terminology in the next section below. Here I focus on the FUFOSE’s aim. The aim then is to provide the right problem to the answer they already have: a science is needed to support the idea that specific foods are good for you. Science is to be subjected to the requirements of the provision of evidence. This requirement is confirmed in the third point: a consensus must be reached to align all researchers in the project on the problem that will accommodate the proposed solutions. The second point of the quote above deserves special attention: a ‘function-driven perspective’ is preferred over a ‘product-­ driven’ approach. By this, ILSI means that specific foods and their nutritional composition will not be investigated, but only the function of isolated nutrients in relation to functions of the body (hence ‘functional’ food). To understand this, it must be reminded that ILSI has many different food and chemical companies in its General Assembly. At the time of FUFOSE, it counted 62 member companies. Amongst the food companies alone, there are several competitors with similar products. Next to similarity, difference can also cause trouble because certain products, like yoghurts, may be easier to promote as beneficial than snacks, rich in sugars and fat, or soda drinks. Yoghurts have a more favourable ‘nutritional profile’ and are, potentially, more credible bearers of health claims. Of course, companies like Nestlé and Unilever have various product categories on the market. A second and related reason for eschewing a ‘product-driven’ approach is Europe’s market itself. The composition of food products is a very sensitive issue, and diverging opinions on this amongst EU Member States constantly risk obstructing the free movement of foodstuffs within the Common Market. For now, it is important to note that what ILSI calls ‘science’, a ‘science-base’, or ‘functional food science’ is a strategic move to encourage and anticipate a European legislation for health claims. In Europe and worldwide, health claims became very much in vogue during the 1990s. However, there were no common rules to deal with them. Each Member State had its own policy. Aware that certain countries were cautious or sceptical about this health niche, ILSI wanted to turn its initiative into an advantage by proposing a science to evaluate health claims in terms that were favourable for the food industry at large. The core of the strategy is to isolate ‘functional components’ from processed food products with a complex and ambivalent nutritional composition and to isolate ‘target body functions’ from an individual’s complex clinical experience. Although this ‘function-driven approach’ is the core of functional food

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science, the landmark article in the British Journal of Nutrition is rather short about it: Up to now, the approaches used for functional food science, both in Japan and to a lesser extent in the USA […] have mostly been ‘product or food component-­ driven’, and they are likely to be very much influenced by local, traditional or cultural characteristics. A science-based, ‘function-driven’ approach is preferable, because the functions and their modulation are universal. Functional food science, therefore, refers to the new concepts in the science of nutrition that lead to the stimulation of research and to the development of functional foods. (Diplock et al. 1999, p. 6, my emphasis)

The universality of science is opposed to culture, which is a theme that is, paradoxically, part of the culture of modern Western societies since the seventeenth century. In the citation, the word ‘influence’ is used, and it gives the impression that culture contaminates food products, whereas functional food science can purify them, by detaching them from their particularities. This detachment is also a general operation to transform products with particular histories into goods that can circulate in the calculable space of markets, before attaching themselves again to particular people who buy them (Callon et  al., 2002). The detachment that ILSI proposes, however, is paradoxical: to value and qualify food products, food products themselves must retreat into the background to the benefit of separate ingredients, components, nutrients. Historian and philosopher of science Gyorgy Scrinis (2013) has coined the strategic focus on separate nutrients as ‘nutritionism’, and he qualifies it as an ideology.3 The word ‘ideology’ is perhaps a bit unfortunate, because it seems to convey that nutritionism is but a set of ideas, or a superstructure that mystifies an underlying material and economic infrastructure. However, it is as much an ‘infrastructure’ as a ‘superstructure’ as we have seen in the previous chapter: the functional foods concept has material and genealogical relations to existing infrastructures of food production, and the sugar industry in particular. A final aspect that I would like to highlight before looking into the contents of functional food science is ILSI’s claim—in the sense of

3  See his book Scrinis (2013). For his characterization of nutritionism as an ideology: see Scrinis (2008). Michael Pollan (2008) has introduced the term ‘nutritionism’ to a wider audience in his best-selling book In Defense of Food. An Eater’s Manifesto.

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claiming a right—to public health. ILSI envisions a contribution to the improvement of public health through the advancement of science: We are at a new frontier in nutrition science because, at least in the industrialized world, concepts in nutrition are changing significantly. We are progressing from a concept of ‘adequate nutrition’ to one of ‘optimal nutrition’. We have moved from a former emphasis on survival, through one of hunger satisfaction and of food safety, to our present emphasis on the potential for foods to promote health, in terms of both improving well-being (mental and physical conditioning) and reducing the risk of diseases. (Diplock et al., 1999, p. 5)

ILSI, speaking in the name of public health, defends nutritionism as a timely solution, as Western societies face the problems of ageing, chronic and non-communicable diseases like diabetes, obesity, cancer, and cardiovascular diseases (e.g. Roberfroid, 2000; Howlett, 2008; Chadwick et al. 2010). In the history of medicine, connecting public health to science has been a complicated historical process (Freidson, 1988; Foucault, 2001, 2003; Marks, 2000).4 Historian Harry Marks (2000) gives a detailed account of how medicine has become ‘scientific’ with the development of clinical trials to discriminate between effective and non-effective or even dangerous forms of therapy. In the US, this was the project of a heterogeneous community, spanning several generations throughout the twentieth century, that Marks calls the ‘therapeutic reformers’. This was a powerful movement, rooted in a growing mistrust of the clinical judgement of individual practitioners, and the putting on the market of drugs that have had dangerous and sometimes lethal side-effects. So it was a movement critical of private judgement and clinical experience, but also wary of the private interests of the pharmaceutical sector. Already in the early twentieth century, the American Medical Association (AMA) ‘put their faith’, as Marks says, ‘in laboratory experiment to counter drug promotions in the marketplace’ (Marks, 2009: 83). Marks insists on a shared faith or belief, and he considers this constellation of beliefs and research practices as a moral 4  For example, Foucault (2003) discusses the nineteenth-century origins of the medical ‘gaze’ in relation to a new geography and ontology of diseases in his famous The Birth of the Clinic. He also discusses the birth of ‘social medicine’ in a conference lecture, published in Dits et Ecrits II, see Foucault (2001).

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economy, as proposed by Lorraine Daston (1995) to historically characterize scientific practices.5 The AMA believed in the moral authority of evidence, and there was a distinctive anti-commercialism in its work. In more general terms, in the US and in Europe, the professionalization of the medical discipline from the nineteenth century onwards developed in close relation to the State, the latter setting the mission of protecting public health. In its mission and faith to connect science and public health, ILSI and its nutrition community bear some resemblance to this movement of therapeutic reformers. The community is also multidisciplinary, although it does seem to aspire to a certain specialization, or perhaps even professionalism, formed around the object of functional foods: ‘Functional food science is a new discipline that is part of the science of nutrition and is aimed at stimulating research and development of these foods by using a function-driven approach’, writes the scientific coordinator of the FUFOSE project (Roberfroid, 2000, p. 1661). However, the community that the FUFOSE project created is not anti-­ commercial. Its boundary is not between private and public, but sectoral: between the agri-food sector and the pharmaceutical sector and their respective markets. ‘In no case must functional foods be considered drugs’, write the authors of an article in the Scandinavian Journal of Nutrition (Coppens et al., 2001). At the time when this article was published, these authors were all members of the Health Claims Expert Group of the European Confederation of Food and Drink Industries (CIAA).6 If Marks’ therapeutic reformers operated according to a certain moral economy with the authority of evidence as its point of gravity, then the functional foods community was trying to establish a point of gravity and a form of evidence of its own, in a moral economy where industry, government, and academia could sit together peacefully, agree on the problems of a given, common world, and forge consensus on the solutions under the sign of science. 5  For Daston (1995), ‘moral’ refers to both the psychological and the normative. And ‘economy’ means, in this context, a ‘balanced system of emotional forces, with equilibrium points and constraints’ in which ‘(n)ot al conceivable combinations of affects and values are possible’ (p. 4). A moral economy is rooted in activities or practices and derives its stability from it. As such, it is also a collective phenomenon. I return to this concept and relate it to debates on scientific evidence for health claims in Chap. 7. I will argue that the ‘moral’ is performed and situated not only within the realm of the psyche. 6  This is mentioned in the form of a disclaimer underneath the article.

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Markers and the Clinical Outside The FUFOSE project ended in 1998, and in 1999 the results of a consensus meeting in Barcelona were published in the British Journal of Nutrition (Diplock et al., 1999), which I will refer to as the Consensus Document. The Document proposes the following working definition for functional foods: No universally accepted definition of functional foods exists. In fact, because functional foods are more of concept than a well-defined group of food products, a working definition is preferred for the purposes of this Consensus Document. A food can be regarded as ‘functional’ if it is satisfactorily demonstrated to affect beneficially one or more target functions in the body, beyond adequate nutritional effects, in a way that is relevant to either an improved state of health and well-being, and/or reduction of risk of disease. Functional foods must remain foods and they must demonstrate their effects in amounts that can normally be expected in the diet: they are not pills or capsules, but part of a normal food pattern. (Diplock et al., 1999: 6)

The starting base is ‘food’ but the most important word in the citation is ‘demonstrated’. Functional food is a concept for food that has passed a test of some sort. The kind of test remains unspecified in this definition. Functional food is not an object or a predefined group of food products, as the authors argue, but it is a qualification of food. And it must remain food after its qualifying test. This means that food must not be shown to have therapeutic agency or else it might be considered a drug. The question then becomes: what are food’s effects beyond nutrition, and how do you demonstrate it? The main issue in the Consensus Document is to make a number of proposals to answer that double question. The definition above specifies a genus (functional food belongs to the category of food) and a differentia (it affects functions in the body beyond nutritional effects).7 The differentia is hypothetical in nature and refers to other concepts that need to be defined (‘target functions in the body’, ‘beyond adequate nutritional effects’, ‘improved state of health’). Now, 7  The genus-differentia definition goes back to Aristotle, and a discussion of it can be found in: Granger, E.H. (1984). Granger argues that Aristotle defines the relation between genus and differentia in three different manners, and that this represents three stages in Aristotle’s thought. My use of the two terms is more general and serves only as a first clarification of the term ‘functional food’.

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one could argue that this differentia does not really distinguish functional food from other food: all foods are likely to have effects beyond mere nutrition, it is just that we are not aware of it. But this is exactly the point: the Consensus Document is not about a new category of food, but about a stratagem of demonstration or proof. The aim of the Document is to propose a method, or rather a series of methods, to demonstrate these effects. What complicates things is that these methods are proposed together with new concepts: effects, qualified as ‘beyond basic nutrition’ have to be made visible in ‘target body functions’, indicating ‘an improved state of health’. So the Document’s working definition does not qualify as a referential definition since the description does not refer to known terms. Rather, it is an operational definition or a working programme: a stratagem leading somewhere. The structure of the article gives a hint of what this programme looks like. Here are the titles of the most important subsections in the introductory part of the article: ‘From traditional to new concepts in nutrition. From new concepts in nutrition to functional foods. From functional foods to functional food science’ (pp. 5–6). If it seems a bit awkward to have a science following from functional foods and not the other way round, it must be remembered that the ‘science’ described in the Document is not science but a stratagem, subject to specific constraints. The Consensus Document introduces a definition of functional foods that is dependent on methodologies yet to be developed. Figure 3.1 helps us to understand what the methodologies that define and qualify functional foods consist of. A functional food component is anything that can be formulated into a food matrix and that is safe for consumption. The food component can be a nutrient, like a vitamin or a

Fig. 3.1  Classification of markers relevant to the effects of functional foods (reproduced from Diplock et al. 1999: 7)

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mineral, but also a non-nutritive component like a bacterial strain, certain fibres, or plant sterols (e.g. in cholesterol-lowering margarine). The authors propose to exploit the black box between a food component and a (still hypothetical) health-related outcome. The idea is that there is a chain of markers that mechanistically lead to an outcome. The original explanation with Fig.  3.1 is: ‘This is a diagrammatic representation to show how different types of markers would be expected to lie within a logical progression from the food component to the health outcome. The types of markers are completely independent of each other. Markers can either be indicators or, if they can be proven to be causal, factors’ (p. 7). The first type of marker is the marker of exposure like a serum, faecal, urinary, or tissue marker. The increased level of red-blood-cell folate is a marker of the exposure to folate in food, for example. The second type of marker is a marker of target function or biological response. The example given is the reduction of plasma homocysteine as a possible response to dietary folate. The third type of marker is the marker of intermediate endpoint. This concerns, again, the measurement of a biological process that is somehow related to a clinical outcome (improved state of health and/or reduced risk of disease). The example given is the extent of narrowing of the carotid artery as evidence for cardiovascular disease. Another example would be the lowering of cholesterol which is also considered to be related with cardiovascular disease. Two issues about this classification of markers stand out. Firstly, the word ‘clinical’ has no significant role in  this Document. A clinical outcome is a therapeutic or toxic effect that is clinically observable: a human being recovers, symptoms disappear or, on the contrary, (new) symptoms develop. For drug development, it is crucial to know the effect they have on human beings, even if the exact mechanisms of the molecule’s action in the human body are not always known (Pignarre, 1997; Dagognet & Pignarre, 2005). It is the clinical outcome that counts. With functional food science, we are in a different situation, and it is almost the exact opposite: functional food science is not concerned with clinical outcomes, but with mechanisms. Functional food scientists stop right before the clinical outcome, at the ‘intermediate endpoint’: a marker that stands in a hypothetical relation to the clinical outcome because there is evidence for the relation in other studies. In fact, presenting intermediate outcomes as ‘right before’ a clinical outcome is part of the argument in functional food science: it suggests a straight pathway of bodily responses with predictive value. One of the main authors of the Consensus Document has

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developed this idea further and calls it ‘evidence-based mechanistic reasoning’ (Aggett, 2011). The hypothesis of mechanisms that lead to a ‘health-related outcome’ would support a type of evidence-base (to be developed) that is less vulnerable to the unpredictability of clinical outcomes in drug development. Eschewing the word ‘clinical’ further helps to avoid any confusion with drug development and the costly business of large-scale clinical trials. This brings me to the second point that characterizes functional food science as a specific practice. The understanding of mechanisms is not a goal in itself. Functional food science is a stratagem that demands leeway and looks for associations rather than strong causality. If causality can be established, then all the better. If it cannot be established, then this is no reason to say that a claim about nutrient’s health benefits cannot be formulated. The term ‘indicator’ is used for markers that are not causally related to the health outcome, and ‘factor’ is used for those that are causally related, although it is not specified what causality exactly means.8 Criteria for markers are proposed in bullet points such as: • Markers should represent relatively immediate outcomes, which can be used to assess interventions in a reasonable timescale; they could, therefore, wherever possible, replace later and more remote outcomes as have been used in some epidemiological studies. • Markers must be rigorously validated and amenable to standard quality-control procedures. • Markers must be measurable in easily accessible material, or obtainable using methodology that must be both ethical and minimally invasive. (Diplock, 1999: 8, my emphasis)

These criteria constrain the possibilities of scientific research, while insisting on the fact that markers must be rigorous and quality assured. The functional food scientist, then, appears as a type of technician constrained to avoid too difficult (and time-consuming) questions and focus on solutions: a claim technician. The FUFOSE Consensus Document was  I refer again to cholesterol as one of many risk factors. Causality is mentioned three times in the entire Document, without it being the main issue in the section where it occurs. 8

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written and published before a European regulation on health claims existed, at a time when food companies and national authorities were pushing for a regulation of claims on food products. Food companies were pushing to have access to a European market with a clear and light approval procedure. Some national authorities were pushing as well because they were being put under pressure by industry.9 When the Consensus Document was written, the term ‘biomarker’ was eschewed and ‘marker’ was preferred. This terminology was chosen to avoid being limited to biochemistry and to broaden the scope of marker-oriented research to cognition, psychology, and performance. This also allowed to broaden the evidence-base for functional food by including weak causality or correlation. Let me quickly resume the characteristics of what the Consensus Document proposes as a new science, and what I call a stratagem of demonstration. The first characteristic concerns the externalization of the clinical: the clinical is suggested but kept at bay at the same time. Put differently: the clinical is the stratagem’s constitutive outside—it is that against which the stratagem defines itself.10 The body itself can be made to speak through indices and markers, but the role of these markers in an outcome that is clinically relevant is hypothetical. The stratagem introduces a new concept of health that is, ideally, detached from the agency of bodies. Instead of ‘clinical studies’, the terms ‘human studies’ or ‘human intervention studies’ are used. These studies are in fact marker-oriented studies, based mainly on literature reviews, with enough leeway to associate different types of markers to support the evidence-base for a claimed effect. The idea is defended that such associations have a cumulative effect and thereby increase evidence for a relationship with the clinical. How such a comparison and association between different markers should come about is not clear. This relates to the second characteristic of the functional food stratagem: it excludes the risk that in theoretical-experimental sciences is constitutive of association or articulation (Latour, 1999). The risk taken in scientific practice is that the object under study is granted the power to redefine the questions addressed to it (Stengers, 2023). The Consensus Document formulates a series of concepts and constraints that do away with this risk, because the final aim is not to gain fundamental knowledge  Interview at the European Commission, DG SANTE, Brussels, 23/04/13.  I will return in more detail to the concept of ‘constitutive outside’, taken from Barry (2013) and originally from Butler (1993) in Chap. 5. 9

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on food biology, metabolism, and the body, but to pass through the human body as a site of demonstration of the ingredient’s market value. If this resembles the way drug molecules are socialized and put on the market (Pignarre, 1997), then the functional food stratagem is geared to avoid the risk of the clinical trial. The stratagem turns the body into a site to differentiate food from drugs, and health from disease, by externalizing the clinical from its ‘box’ of mechanisms. Functional foods have no patients, but consumers. Consumer’s experience of well-being is irrelevant to the market test that functional food science proposes. What worries claim technicians is: ‘how much science is enough?’ (Heasman & Mellentin, 2001). Figure 3.2 is also reproduced from the Document: this figure represents a body made of markers, detached from clinical experience, as a point of articulation between a component and a claim with market value. Again, the difference with scientific practice as a mode of taking risks with objects is salient. The functional food stratagem uses the risks taken by other researchers and starts from recognized objects to make them subordinate to a claim. The logic with respect to experimental research is turned on its head: instead of making risky claims to articulate (or not) objects, the question becomes what kind of fixed procedure can deliver good claims, without them mattering for the object. As I already

Fig. 3.2  The human body as a point of articulation between components and claims (reproduced from Diplock et al., 1999: 25)

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mentioned, the stratagem of the Consensus Document does not require scientists but claim technicians. Functional food is not a new frontier in science but in food technology, which is also how some of the authors of the Consensus Document see it themselves.11 The Consensus Document presents a nutritionists’ variation on the project of rational pharmacology or drug design. The idea of rational pharmacology emerged in a context of crisis: patents on efficacious drug molecules were expiring in the 1980s–1990s. Innovation became difficult and costly, because the production of drugs had, until then, followed a model that generated ‘more of the same’ during several years (Pignarre, 2004). Rational pharmacology promised a scientific approach that would focus on the elucidation of biological mechanisms between a biological target or ‘lock’ and a molecule or ‘key’ to open the lock. A lot was expected from a marriage between molecular biology and computer simulation to match the properties of molecules with those of biological targets. The model of drug design would ideally be able to create such perfect matches, without side effects, and at a much lower production cost than through screening methods and clinical trials. Nutritionists of the ILSI community do not call their approach ‘rational nutritionism’ but ‘evidence-based nutrition’ or ‘evidence-based mechanistic reasoning’. The notion of ‘evidence-­based’, however, conveys that a certain amount of proof should be enough. That amount, preferably, shouldn’t involve anything clinical, especially not the randomized controlled trial (RCT). Functional food science, like rational pharmacology, places its hopes on a version of molecular biology that would be able to elucidate processes in the organism in terms of ‘mechanisms’. The prominent role of the chemist is subordinated to that of a molecular and mechanistic biologist (Pignarre, 2004). The functional food stratagem anticipated regulatory developments in the EU and proposed its own policy (Fig. 3.3). The need for a ‘scientific basis’ is stipulated as a starting point. Such an assertion is absurd within scientific practice, but it makes sense within product development and regulatory stratagems. Type A claims are enhanced function claims and Type B claims are reduction of disease risk claims. As we will see in Chap. 5, the Commission’s proposal for a health claims regulation in 2003 (four years after the publication of the Consensus Document in 1999), took up these categories and cites FUFOSE as valuable work (European Commission, 2003: 9). FUFOSE’s follow-on  Personal interview at ILSI’s Annual Symposium. Brussels, March 24, 2011.

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Fig. 3.3  Reproduced from Diplock et al. (1999: 25)

project, conveniently called PASSCLAIM, also funded by the European Commission and coordinated by ILSI Europe (2001–2005), proposes criteria to assess health claims made on food products, thereby providing a source of inspiration for the European Nutrition and Health Claims Regulation that was under discussion when the PASSCLAIM results were published in the European Journal of Nutrition in 2005 (Aggett et  al., 2005). The project ran from 2001 to 2005 and was already mentioned in 2003 for its ‘considerable work’ in the Commission’s first proposal for a Regulation (European Commission, 2003). It is still recognized as an important work by policymakers today.12 PASSCLAIM is the acronym of: Process for the Assessment of Scientific Support for Claims on foods. FUFOSE, as we have seen, introduced the concept of functional foods with a specific terminology (functional components; target functions; health benefit; marker; etc.) and a classification of markers. But it didn’t 12  Interviews at the Belgian Federal Ministry of Health, Brussels, 12/03/2012, and at the Commission’s DG SANTE, Brussels, 23/04/13.

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address the question of how different types of studies should be assessed by any competent authority and what their respective importance would be.

From Concepts to Evidence In the 1980s and early 1990s, The European Commission, under the presidency of Jacques Delors, went through a number of reforms to further the Common Market project. This included an expansion of the areas of regulation for the European Commission. The Commission, not sufficiently staffed to deal with the increasing number of technical issues that the EU wanted to regulate, welcomed input from expert groups.13 The EU Framework Programmes that financed projects like FUFOSE and PASSCLAIM were a means to generate policy-relevant inputs. In the preface to the PASSCLAIM published article, European Commissioner Jürgen Lucas states: ‘The results of PASSCLAIM have been and will be an important input into the regulation on nutrition and health claims made on foods, which is under discussion at the moment’ (Aggett et al. 2005: 3). Of particular interest in the PASSCLAIM project are issues concerning human data to be generated from ‘intervention studies’. First of all, in contrast to FUFOSE, more attention is given here to the importance and strength of the randomized clinical trial (RCT). However, the main argument is consistent with the line of thinking that FUFOSE initiated: all available data should be taken into consideration, without granting absolute privilege to one type of study (e.g. RCTs). In the words of the authors: ‘For all studies and methodologies, quality and power may take precedence over the type of study in weighing evidence for the substantiation process’ (p. 14). A similar reflection is made with respect to the elucidation of biological mechanisms, which is the ambitious ideal of ‘functional food science’, but not for their evidence-base: ‘For substantiation of a claim, it is […] more important to demonstrate a consistent effect of a food or food component on health across a range of studies than to have a scientifically substantiated mechanism’ (p. 15). In fact, the elucidation of mechanisms on the one hand, and RCTs on the other, seem to represent two opposites in terms of requirements, none of which claim technicians wish to privilege when it comes to substantiating health claims. PASSCLAIM encourages the mixture, association, and accumulation of 13  See, for example, Young (2005: 105) and the work of lobbyists Guéguen (2007) and Guéguen and Rosberg (2004).

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different studies, depending on what is available. Again: the risk that scientists usually take when articulating their experiments with the objects of investigation is reduced in advance, as much as possible. Such scientific and financial risk is at a minimum when computer models can be used: ‘Many laboratory or computer-based models are now used in nutrition to circumvent the long and costly procedure of human studies, to dissect out mechanisms and predict behaviour in biological systems. Such models can provide additional evidence for the substantiation process’ (p. 14). Claim technicians also know that conducting RCTs, the gold standard for the testing of drugs, are not always easy to design for food components. The authors discuss these difficulties, while at the same time giving some recommendations on how to conduct RCTs, or other human studies, as well as possible. A first concern is the selection of participants in a study: ‘Subjects should be selected on the basis that the appropriate control group is one with a typical diet, and not a special diet that might interfere with the intended benefit. For example, it might not be appropriate to use vegetarians to test the effect of an added fibre’ (p. 16). More generally, the study group’s background diet and lifestyle must be characterized to exclude confounding factors. Put differently: beneficial nutrients, in order to be nutrients and not drugs, must be demonstrated to have an effect in dosages that can be expected in human diet. At the same time human diet is where nearly all confounding variables stem from. Humans, as the authors concede, are exposed to many active substances in their diet. So which of the tested active substances is already present in the diet and how can we know about it? And what about interactions of nutrients in the diet with the tested substance? Diet must then be normalized through the selection of subjects (and the exclusion of vegetarians), and by the invention of devices to ensure the subject’s compliance, especially where markers of intake or exposure do not exist. A questionnaire or logbook can be used as a device to check what people eat, and to see if there are changes in the ‘baseline diet’, characterized at the beginning of the study. However, the authors go on, misreporting is a well-known problem, especially in ‘obese subjects’, who tend to underreport what they eat (p.  17). In addition, the act of recording is thought to influence food choices and intake (p.  17). These examples show that ‘taming’ food through clinical trials, in order to obtain clear responses from it, implies that human beings must be tamed to a large degree as well, without any certainty as to the final results. One could conclude that there is not much sense in doing such trials, given the many confounding factors of

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substances that are already present in the normal diet of many people. But ILSI draws another conclusion: if such trials are complicated, then the clinical body must be detached from a body of markers. Markers, they assert, can be handled. Markers can act as a reliable witness to exposure on the one hand and as a site of inscription for predictive therapeutic scenarios on the other.

The Stratagem of Functional Food Science The meanders of FUFOSE and PASSCLAIM tried to tackle what is at once an economic, political, and ontological problem: the human body as a reliable testifier/witness for both the truth-claims and the marketability of a product. The fact that the human body is also a testifier for drugs is relevant. If functional food must pass through the human body before being put on the market, just like drugs, then the human body becomes the site to create a difference with drugs. For ILSI’s claim technicians, academic and industrial, functional foods must become agents in their own right: agents of health, in another jurisdiction than that of medicine. The food industry wants to address health on its own terms, with its own agents, and these agents require a new nutrition science—functional food science—with its own methodologies, addressing objects worthy of specialized, autonomous professional judgement. The Consensus Document is a conceptual apparatus to invent both a new type of product and an expert to evaluate it. I have insisted on the word stratagem from the beginning of this chapter onward to avoid using the term ‘science’. We can now better appreciate the fuller meaning of this term. A stratagem denotes both a strategy and a form of deception, and of ruse. In a book on Sun Tzu, a Chinese military general and strategist, Pierre Fayard (2011) explains that Chinese stratagemic military art is about guiding the enemy, rather than opposing an enemy in warfare. ILSI guides with the aid of concepts. Interestingly, this principle of guiding is explained by Jean-Pierre Mourey (1994) in another context: labyrinths in twentieth-century art. Drawing on Deleuze, he distinguishes what he calls the ‘labyrinthe-stragème’, which has a clear objective and traces a way to it, from the rhizome, which, as a ‘line’, is erratic and undetermined. ILSI has a clear objective, but it needs to trace a way to this objective through detours, meanders, mediations. For this reason, I call functional food scientists claim technicians, to indicate a cross-over and twist or torsion between the particularity of the scientific

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claim and its development (Latour & Woolgar, 1986) on the one hand, and the ‘technical mode’ which is about delegation, detours, folds (Latour, 1999). Pragmatically, then, the word stratagem will be our indicator that attention is in order whenever the term ‘science’ is mobilized in the technopolitics of nutritionism. Anthropologist Alfred Gell argues that labyrinths do something: they have power over their beholders, who get captured by the inward movement of the design (Gell, 1998: 95–90). The design performs precisely what ILSI performs when it constructs new concepts in its publications. The functional food stratagem seems to have a lot in common with drug testing, as it revolves about procedures to test therapeutic efficacy— an obligatory test to put a product on the market. The risk, as Pignarre (1997, 2004) explains, that the clinical trial represents, is above all a financial risk, as nothing new will be learned about the nature of the molecule or the mechanisms of its action. What the clinical trial shows is whether the molecule works or not: does it relieve disease symptoms in human bodies? Will all the previous work to develop and test the molecule be rewarded or not? Food companies are not interested in making medicinal claims, and in performing the clinical trials required to put products with medicinal claims, or drugs, on the market. These are costly, and the food sector has no expertise in the matter. This is why claim technicians propose a new science that comes with its experts. From a legal point of view, a food that relieves disease symptoms would be a drug, and it would have to pass the same test as drugs. For this reason, food companies and nutrition scientists focus on ‘health’ and ‘reduction of disease risk’. As a consequence, the ‘clinical’ must be detached from the body itself. Indicators and markers are searched for that no longer relate to observable well-being or disease. As such, the human body becomes a site of difference between two kinds of therapeutics – drugs and food – but also between two markets. Yet, ILSI’s stratagem is not a guarantee in itself to realize or perform the functional foods market. The following chapters show that there are other passage points to create this market for health claims.

References Aggett, P. (2011). ‘From PASSCLAIM to health claims’ Keynote Lecture at: Science for Health  – Beyond the Silver Anniversary. ILSI Europe Annual Symposium, 24–25 March 2011, Brussels.

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Aggett, P., Antoine, J.-M., Asp, N.-G., Bellisle, F., Contor, L., Cummings, J., Howlett, J., Müller, D., Person, C., Pijls, L., Rechkemmer, G., Tuijtelaars, S., & Verhagen, H. (2005). PASSCLAIM - Process for the Assessment of Scientific Support for Claims on Foods. Consensus on Criteria. European Journal of Nutrition, 44(Suppl 1), 1–30. Barry, A. (2013). Material Politics: Disputes Along the Pipeline. Wiley-Blackwell. Butler, J. (1993). Bodies that Matter. Routledge. Callon, M., Méadel, C., & Rabeharisoa, V. (2002). The Economy of Qualities. Economy and Society, 31(2), 194–217. Chadwick, R. et al. (2010). Functional Foods. Springer, Coll. Wissenschaftsethik und Technikfolgenbeurteilung Band 20. Coppens, P., Bijlsma, M., Craddock, N., Herreman, I., Hurt, E., Le Bail-Collet, Y., & Loosen, P. (2001). Are foods bearing health claims medicinal products? Scandinavian Journal of Nutrition, 45, 140–145. Dagognet, F., & Pignarre, P. (2005). 100 mots pour comprendre les médicaments. Comment on vous soigne. Les Empêcheurs de penser en rond. Daston, L. (1995). The Moral Economy of Science. Osiris, 10, 3–24. Diplock, A. T., et al. (1999). Scientific Concepts of Functional Foods in EuropeConsensus Document. British Journal of Nutrition, 81(1), 1–27. European Commission. (2003). Proposal for regulation of the European Parliament and of the Council on nutrition and health claims made on foods. COM (2003) 424 final. Fayard, P. (2011). Comprendre et appliquer Sun Tzu. 36 Stratagèmes de sagesse en action. Dunod. Foucault, M. (2001). ‘La naissance de la médecine sociale’ in Dits et écrits II, 1976-1988 (pp. 207-228). Quarto Gallimard. Foucault, M. (2003). The Birth of the Clinic. Routledge Classics. Freidson, E. (1988). The Profession of Medicine: A Study of the Sociology of Applied Knowledge. University of Chicago Press. Gell, A. (1998). Art and Agency. An Anthropological Theory. Oxford University Press. Granger, E. H. (1984). Aristotle on Genus and Differentia. Journal of the History of Philosophy, 22(1), 1–23. Guéguen, D. (2007). Lobbying Européen. Europolitique. Guéguen, D., & Rosberg, C. (2004). Comitology. The Hidden Power of the EU: Finally a Clear Explanation. EIS Publishing. Heasman, M., & Mellentin, J. (2001). The Functional Foods Revolution: Healthy People, Healthy Profits? Earthscan. Howlett, J. (2008). Functional Foods. From Science to Health and Claims. ILSI Europe Concise Monograph Series. Irwin, A., Rothstein, H., Yearley, S., & McCarthy, E. (1997). Regulatory Science – Towards a Sociological Framework. Futures, 29(1), 17–31.

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Latour, B. (1999). Pandora’s Hope. Essays on the Reality of Science Studies. Harvard University Press. Latour, B., & Woolgar, S. (1986). Laboratory Life. The Construction of Scientific Facts. Princeton University Press. Marks, H. (2000). The Progress of Experiment. Science and Therapeutic Reform in the United States, 1900-1990. Cambridge University Press. Marks, H. (2009). What Does Evidence Do? Histories of Therapeutic Research. In C.  Bonah, C.  Masutti, A.  Rasmussen, & J.  Simon (Eds.), Harmonizing Drugs. Standards in 20th-Century Pharmaceutical History. Editions Glyphe. Mourey, J.-P. (1994). Labyrinthes et rhizomes dans l’art du XXe sciècle. In L. Roux (Ed.), Les liens et le vide. CIEREC – Université Jean Monnet. Pignarre, P. (1997). Qu'est-ce qu'un médicament? La Découverte. Pignarre, P. (2004). Le grand secret de l’industrie pharmaceutique. La Découverte. Pollan, M. (2008). In Defense of Food. An Eater’s Manifesto. Penguin. Roberfroid, M. (2000). Concepts and strategy of functional food science: the European perspective. American Journal of Clinical Nutrition, 71(Suppl), 1660–1664. Scrinis, G. (2008). On the Ideology of Nutritionism. Gastronomica, Winter 2008. Scrinis, G. (2013). Nutritionism. The Science and Politics of Dietary Advice. Columbia University Press. Stengers, I. (2017). Another Science Is Possible. A Manifesto for Slow Science. Wiley. Stengers, I. (2023). Virgin Mary and the Neutrino. Duke University Press. Weinberg, A. (1972). Science and Trans-Science. Minerva, 10, 209–222. Young, A. (2005). ‘The Single Market. A New Approach to Policy. In Wallace et al. (Eds.), Policymaking in the European Union. Oxford University Press.

CHAPTER 4

The Common Market and the Rise of Information

In April 2013, I had an appointment with an EU administrator who was head of unit at the Directorate-General for Health and Food Safety. I had asked for an appointment with this particular person because he had followed the health claims dossier closely and had witnessed several transformations within the EU institutions, like the creation of the European Food Safety Authority (EFSA) in the wake of the Bovine Spongiform Encephalopathy (BSE) food contamination crisis. At the time of the interview, the EFSA had only just released its so-called ‘batches’ of scientific opinions on health claims, some of which were favourable and many of which were negative, spurring criticism from many sides. In the following chapters, we will see how these scientific opinions had become possible in light of a new European legislation but before that, we need to understand how the health claim became an object of legislation in the first place. My own understanding of that, or at least my realization that this issue was less obvious than it might seem, goes back to this interview in 2013. Debates were raging concerning EFSA’s assessment criteria: they were condemned by some and applauded by others. In the camp of the critics, the criteria were considered too stringent and ‘pharmaceutical’; vague and contradictory; and old-fashioned in the face of the latest scientific and biotechnological developments. In the other camp, EFSA was being applauded for sticking to the evidence and for protecting consumers, information, and the market with science. I was following these debates in real time, © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 K. Hendrickx, Health Without Bodies, Health, Technology and Society, https://doi.org/10.1007/978-981-99-4950-2_4

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participating in scientific colloquia on nutrition; attending seminars on EU food law organized by lawyers and consultants; and I was interviewing academic scientists, lobbyists, and policymakers. Health claims were a tangible matter for me, involving food and human bodies; bacterial strains and clinical trials; fibres, food companies, and ambitious innovation hubs, not to mention ambitious food components. And to better understand what was happening in real time, I needed to trace back how things had gotten to this point. How did ‘health claims’ become objects of government and scientific assessment? How had a boundary been drawn between food and pharmaceuticals—a boundary that was presently raising concerns for food companies and consumer organizations alike, albeit for different reasons? ‘That boundary is what this is all about—that is the real stake’, a man had told me at one of EFSA’s stakeholder meetings, and he had lowered his voice, as if he were sharing a piece of highly sensitive information. If that boundary was so complex and controversial, then my question about its nature became all the more pressing: how had anyone (who?) managed to settle it? Though debated and criticized, there was a European regulation now and health claims had become governable objects  (see Health Claims Regulation, 2006). So on an April afternoon in 2013, I was sitting in front of a man who was going to help me fill the blank spaces on my cartography of concepts, EU institutions, laws. He had been listening to my story frowning rather severely. I then asked about the boundary between food and medicine, and whether this had been a difficult matter for EU officials involved in health claims legislation. How had they managed these discussions? The Head of Unit answered very plainly: ‘We see claims as information and not as food’. Ah. Why, of course. What was I thinking. The tone of the answer suggested that my question was a nonissue: health claims are a matter of information—they are about words and not actual things or boundaries between things! I felt slightly embarrassed by the contrast between my lengthy introduction, with its weighty problematization, and the sobering brevity of my interlocutor’s reply. It took me some time to come to grips with that reply and to realize that there was an anthropological riddle lurking under my interlocutor’s statement. A question no less curious than the boundary between food and medicine: how can food—that what we ingest and metabolize—be dealt with as a matter of information? Through what kind of operation, legal or political, is it done? The answer to that question can be found in the history of EU food legislation, which developed from product-specific or ‘vertical’ legislation

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to an emphasis on food products across the board or ‘horizontal’ legislation. In a common market, legislation sets the conditions for products to circulate across international borders. The increasing emphasis on ‘information’ in food legislation was  developed to prevent Member States from obstructing the free movement of goods. The common market, as any market, is not a space where the Invisible Hand reigns. It is not a space outside of society governed by the laws of nature. The laws that govern the market are manmade political laws.

A Common Food Market The most important element of the European Union polity is the European Economic Community (now called to European Community), founded by the Treaty of Rome in 1957.1 The primary goal of this Treaty was to create the internal market within the EU. There was no special section in the Treaty that provided a basis for what we now call ‘food law’. Legislation giving effect to EU food policy was based on a combination of provisions from the Treaty, such as those concerning agriculture and the internal market, and the obligation to ensure in all policies a high level of protection for consumers and public health (Van der Meulen, 2009: 310). Before the 2002 General Food Law, there existed no separate branch of legislation called ‘food law’. In a sense, the common market must be created over and over again for different categories of products, adding new spaces of circulation as fine layers onto the already existing fluxes of goods and services. And with each new layer, conditions and rules must be set through the politics of law-­ making or legislation, where the different interests within the EU’s patchwork of nations must be taken into account. In Brussels, legislators and policymakers within the EU institutions work to achieve and realize the unity of the EU. Some of them colloquially refer to the Member States as les belles-mères—the mothers-in-law—because they are seen to barge in at the most inappropriate times to come and meddle with what European policymakers consider to be EU affairs. This makes the life of transnational 1  The ‘Treaty’ usually serves as a generic name for a series of updates and modifications to the first Treaty of Paris  establishing the European Coal and Steel Community (signed in 1951); the Treaty of Rome (1957); the Brussels Treaty (1965); the Single European Act (1986); the Maastricht Treaty (1992); the Treaty of Amsterdam (1997); the Treaty of Nice (2001); and the Treaty of Lisbon (2007) where the Treaty came to be named the Treaty of the Functioning of the European Union (TFEU).

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policymakers more difficult and turns the fluid common space they are dreaming of back into a patchwork of rivalling nations. When it comes to food, we are dealing with a complex, lively, and sensitive kind of ‘object’ bound up with local traditions, politics of hygiene, issues of misleading information, consumer protection, innovation policies, trade barriers, and tensions between the EU as a body politic and its Member States. Small technical details cause enormous economic and juridical battles. In fact, ‘details’ do not exist in food legislation, because they are precisely what matters. So it is easy to get into trouble in the common market. When the UK and Ireland joined the EU in 1973, eight other Member States ‘on the continent’ refused to allow UK and Irish chocolate on their domestic markets. Belgium, Luxembourg, Spain, Italy, Greece, France, Germany, and the Netherlands considered that what the Anglo-Saxons were selling was not chocolate at all, because too much vegetable oil was substituted for cocoa butter. These eight countries—accused by the UK and Ireland of being ‘chocoholic purists’—did not criticize the products as such, but the fact that they were being called chocolate. Some proposed to give it another name, like ‘chocolate substitute’. Another example: some years later, Germany prohibited the import of a French liquor because it contained too little alcohol to be called ‘liquor’. When a situation blocks, the Court of Justice of the European Union (CJEU) is there to examine and protect the uniform interpretation of existing legislation. All legislation eventually refers back to the Treaty and the founding principles of the common market.2 The Treaty, as ‘Community Law’, has primacy over secondary legislation and national legislation. Concretely, this means that food legislation is placed under the sign of the internal market and the free movement of goods. This implies, as we will see below, that if a Member State obstructs the free movement of goods, then it has to provide reasons for doing so: the burden of proof is upon the Member State. Food was considered a commodity in its own right from the beginnings of the EU, but the origin or initiative of legislation shifted quickly from the Commission’s Directorate General (DG) for agriculture to that of the DGs responsible for industry, enterprises, and the internal market (van der Meulen, 2009). So for food legislation, the tune is set in the key of the market. This is logical in some respects, but it is in no way a necessity. Food law could have been composed in the key of human rights, 2

 See Devuyst (2006, p. 35–40) for a discussion on the Treaty as a ‘constitution’.

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emphasizing food quality and availability as basic rights instead of making them primarily subject to market legislation. Food law and jurisprudence might have been different if human rights offered the founding principles for it. But with the internal market as the main framework, food legislation took on a specific course.

From Food to Information The implications of this market ‘drive’ behind food legislation, become clear in the landmark Cassis de Dijon case, generally acknowledged as a landmark event in food law, judged in 1979.3 What led to this court case was a German prohibition on the importation of a French fruit liquor: Cassis de Dijon. The reason for this import restriction was that the liquor’s alcohol content was lower than what the German Authorities had fixed for something to be called ‘liquor’. Cassis de Dijon contains between 15% and 20%, instead of the required 25% in Germany. Germany reasoned that a liquor containing a relatively low degree of alcohol is deceiving for the consumer and that it may more easily induce tolerance towards alcohol than beverages  with a higher percentage of alcohol content.4 Germany considered that their import restriction was justified on the grounds of consumer and health protection. The CJEU came to a different conclusion. The Court considered that Germany, prohibiting the importation of the French liquor, infringed upon the Treaty provisions concerning the free movement of goods. The Cassis ruling of the Court created a precedent and set an entirely new principle for the EU single market: the principle of mutual recognition. This general rule states that products that have been lawfully produced and marketed in one of the Member States may not be prohibited in other Member States on the grounds that the products do not comply with national rules. So here we have an innovation in law, where law does not simply transform external elements into legal matter to process, but where a legal interpretation affects how law will function in the future. The innovation was necessary according to the

3   Rewa-Zentral AG v Bundesmonopolverwaltung für Branntwein (C-120/78) [1979] I-649. 4  For a summary of the case and the arguments, see: http://eur-lex.europa.eu/smartapi/ cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61978CJ0120 (consulted on December 19, 2013).

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logic of the single market and the foundational principle of that market: the free movement of goods. The Cassis case signalled a shift in emphasis from vertical legislation to horizontal legislation. In horizontal legislation, rules are made so that they apply to a broad range of foodstuffs, rather than to a specific category or kind of food. Legal scholar C.  Macmaolaín (2007) comments on this historic shift away from the product-specific ‘recipe laws’, which concern what a food is made of. He says that Cassis has consequences for the rules of production of foodstuffs: The ‘recipe laws’ set common compositional and production method requirements for, amongst others, chocolate, honey, and jams and marmalades. […] Cases such as Cassis […] were to lead to an alteration in domestic customary practices and rules for the production and marketing of food and drinks. It was also clear, from subsequent decisions of the European Court of Justice, that the legal principles developed from these initial judgments would extend to all national rules relating to food and drink that were deemed to be a restriction on trade within the Community in any way, subject to some, albeit very limited, exceptions. The manner in which the Court began to interpret the EC Treaty […] removed much of the need to introduce further harmonizing measures, such as those set out in the earlier recipe laws. (Macmaolaín, 2007: 4–5)

The author further expresses explicit concern about the consequences of Cassis and subsequent judgements and legislation on the quality of food within the EU (Ibid.). For many commentators, this shift to more horizontal legislation entails a de facto drop of food quality and standards to the lowest common denominator among the Member States. Cassis was judged in 1979. This was also the year that the first European Directive on food labels entered into force (European Commission, 1979; hereafter: ‘Labelling Directive’). Although there are no cross-references between Cassis and the Labelling Directive, 1979 was a pivotal year for food legislation and the production, marketing, and material composition of food in the EU. One lawyer I spoke to referred to 1979 as nothing less than the ‘beginning of the modern food era’.5

5

 Personal note, 16/12/2013.

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The Labelling Directive was one of the earliest pieces of Community horizontal legislation. It is not a coincidence that one of the earliest pieces of horizontal legislation is on food labelling. Information about food is much easier to regulate and harmonize than food itself! In the vertical logic of the ‘recipe laws’, it is very hard and contentious to align all Member States, each with their own tastes, preferences, and interests to protect. Political animosity arises out of questions where you would least expect it, like the so-called ‘chocolate wars’ that divided the EU for 30 years.6 When the composition of food is addressed, Member States become alarmed and defensive. Their interests, production methods, and traditions are bound up with the nature of the foodstuff: one version of chocolate is made with vegetable fats, and the other with cocoa butter. Are both of them ‘chocolate’? In 2000, a European Directive was published that laid down the minimum requirements for foodstuffs having the ambition of calling themselves ‘chocolate’: … [chocolate] designates the product obtained from cocoa products and sugars which (…) contains not less than 35 % total dry cocoa solids, including not less than 18 % cocoa butter and not less than 14 % of dry non-fat cocoa solids. (Macmaolaín, 2007)

In 2003, the CJEU ruled that it suffices to mention the presence of vegetable oil among the ingredients on the food label so that the consumer is informed about what (s)he is buying. Informing consumers allows avoiding trade restrictions on the basis of arguments that concern the composition and naming of foodstuffs. In 2002, the nature of such information itself came under the scrutiny of the CJEU. The question at the heart of the court case was rather particular: are statements about health benefits on food medicinal statements?

Health and Disease in the Courtroom In the late 1990s, the European Commission received numerous complaints that foodstuffs lawfully marketed in other Member States were not allowed on the market in Austria. The Commission, protecting the 6  See Macmaoláin (2007) for a discussion. See also: https://www.theguardian.com/ uk/2003/jan/17/foodanddrink

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interests of the Union, therefore challenged Austria before the CJEU, claiming that Austria was not respecting the principle of mutual recognition (established with Cassis) and posing an obstacle to the free movement of goods.7 The reason for Austria’s ‘obstruction’ however, was new: it was not because of the products themselves, but because of what was claimed about the products on the food label—claims, such as ‘for a cholesterol-­ conscious diet’ on salmon-oil capsules; ‘a contribution to healthy intestinal bacteria and healthy cells’ on bread; ‘dietary fibre and bulking agent for sufferers of constipation caused by diet’ on the labelling of linseed.8 A number of Austrian courts had sent prejudicial questions to the CJEU about the compatibility of their national legislation with Community law. Austria had its own national law on foodstuffs—the Lebensmittelgesetz— that made health claims subject to a premarket approval procedure. In other Member States, food companies simply needed to justify information on their labels according to a postmarket and ad hoc control procedure for foodstuffs already on the market. But Austria had established a premarket approval, implying that all health-related statements were a priori forbidden. Let us look a bit closer into the case, as an observer, to see how the juridical reasoning in it unfolds. The core question in this case is whether Austria has valid reasons to impose trade restrictions. The ‘normal’ state of the market is the free movement of goods and so it is up to Austria to give valid legal reasons for this breach in the market’s pattern of normality. Austria reminds that making medicinal claims about food is prohibited in European legislation on labelling: The labelling and methods used must not […] attribute to any foodstuff the property of preventing, treating or curing a human disease, or refer to such properties. (European Commission, 1979)

Are health claims medicinal claims? For Austria, referring to health means talking on the positive side of disease. Saying that something is healthy suggests disease prevention. You stay out of the pathological by being healthy. Health and disease, the normal and the pathological, are  C-221/2000 Commission vs Austria ECR I-1007.  These examples are presented in the introductory paragraphs of the opinion of advocategeneral Geelhoed. See Geelhoed (2002). 7 8

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two sides of the same coin. It makes no sense to distinguish disease-related from health-related statements. Moreover, one cannot expect the consumer to try and make such distinctions. So for Austria, the verification of health claims through a premarket approval procedure is a matter of consumer protection and public health—two important principles in the EU Treaties and in specific legislation on labelling. For the European Commission, however, statements about health do not refer to disease. The Commission admits that the article about medicinal claims doesn’t clearly make a distinction, but that under the definition of the first European pharmaceutical directive 65/65, a medicinal product has the property of restoring, correcting, or modifying physiological functions in human beings. If, on the other hand, a product is merely ‘healthy’, such properties cannot be ascribed to it. So, they are not two sides of the same coin. This would mean that health claims are perfectly legal and require no special approval procedure that functions as a de facto trade restriction. How can such an issue be resolved? Should the judges read Georges Canguilhem’s The Normal and the Pathological before reaching a verdict (Canguilhem, 2015 [1966])? Should a panel of philosophers and medical sociologists be established to settle the ontology of health and disease? No, because the court case is fundamentally not about health and disease. The court case examines the question whether health claims infringe upon existing legislation. It is the advocate general, acting as a neutral advisor to the Court, who settles the issue. It is a matter of logic and of sticking to the terms and words of the law. It is the art of remaining at the surface of things. It is worth reading the advocate general in his own words: 53. I agree with the view that a distinction must certainly be made here […]. Article 2(l)(b) states unequivocally that the prohibition relates to labelling which is directly or indirectly connected with a human disease. Disease is a condition in which a person’s organs and vital processes do not function properly and normally. Disease is the opposite of9 a healthy condition in which a person has no physical or, as the case may be, mental infirmities. For that reason there is a fundamental difference between statements relating 9  “The opposite of” is my adaptation of the English translation of Geelhoed’s opinion. In the original Dutch version, Geelhoed says that ‘ziekte is tegenovergesteld aan de toestand van het gezond zijn’. The strong sense of tegenovergesteld is somewhat weakened by the official English translation: ‘disease is constrasted with a healthy condition’. The German version of the opinion (which is the language of the trial) is close to the original Dutch phrase: ‘Der Krankheit wird der Zustand des Gusundseins gegenübergestellt’.

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to the prevention, treatment or cure of a disease, and statements connected with the promotion of human well-being.10

A person is either sick or healthy: sick and healthy bodies are not the same, as Canguilhem would say. They are not two sides of the same coin, but two different coins. Claiming things with respect to health does not imply making statements about disease. Health claims are not medicinal claims. This implies that health claims as such do not justify Austria’s trade restriction. But the Republic of Austria brings forward other legal grounds: the protection of the consumer and the protection of public health. These are two separate grounds that allow a Member State to deviate from the standard rules on food labelling. Here, we are no longer considering statements as such, but the fact that they are read by consumers. Protecting consumers has a very specific sense in legislation on food labelling: 59. [...] Protection of the consumer means that the consumer is afforded guarantees to safeguard his economic interests. In particular, he is entitled to be protected from misleading information shown on the products which he wishes to purchase, or on their packaging.

Consumer protection is not directly related to health, but is first and foremost a matter of information. Consumers must be protected from misleading information. They must be protected because misleading information may lead to confusion and wrong assumptions as to the properties of a foodstuff. This in turn may lead to risky behaviour (such as not going to the doctor or eating too much of something). The term ‘behaviour’ is not used by the advocate general, but the term is justified in view of the possible dangers to health: 59. [...] The health of the consumer may be at risk if, in consuming the foodstuff, he wrongly assumes, as a consequence of health-related information, that the product has a therapeutic effect, as a result of which he may, for example, neglect to change his dietary habits or to seek medical help.

Wrong information poses the risk of inducing the wrong behaviour, and it is only then that ‘health’ has a place in the argument. However, information remains the main issue: any possible danger to the consumer’s 10  This citation and the citations in the following pages are drawn from the published opinion of the advocate-general (see Geelhoed, 2002). All emphases are mine.

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health (not public health) depends on the nature of information. What the Labelling Directive and related legislation (concerning advertisements) provide are a number of protective measures against misleading information. In the case we are following here, it becomes clear that, from a juridical point of view, health cannot be directly addressed through the notion of ‘consumer protection’, but only information can. So can Austria justify its policy (which goes further than the Labelling Directive) on the grounds of consumer protection, that is misleading health-related information? The answer is no, because the Labelling Directive already forbids misleading information in general. This doesn’t mean that misleading information cannot exist on the market. It means that the legal means to deal with particular cases of misleading information exist. So there is no reason to derogate from the Directive on the grounds of consumer protection. Austria had one argument left to justify its deviation from the framework of the Labelling Directive. Austria argued that the derogation is needed in order to protect public health. But as the legal framework relevant to this Court case clearly foresees protective measures against misleading information, what possible risk to public health could there remain? Is there some possible risk that is not covered by the EU’s existing legal provisions? There was only one possibility left: Austria argued that even information that is not misleading might have undesired consequences. Consumers may wrongly rely on the effect of a health-related statement, even if the statement in itself is correct. You might say that if consumers wrongly rely on the effect suggested by a food label, then this means that the label is misleading. But we already went there! So, the hypothesis under consideration is that non-misleading information may also lead to wrong expectations. This apparent absurdity makes juridical sense: it provides a way out of the short-circuited loops on labelling and information. It opens a possibility to address food and health, rather than labels and information, in the Court Room. It opens up the register that food advertisements tap into when addressing consumers: a world of tangible products that promise to make you healthier. The European Commission is reluctant to go that far and argues that nothing is gained by prohibiting the description ‘healthy’ on a food label, since foodstuffs harmful to health may not be lawfully marketed anyhow. The advocate-general, however, was prepared to follow Austria’s reasoning, and agreed that its rules on health-related statements are, in principle, an appropriate manner to protect public health. He formulates this succinctly in point 63:

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63. Although, in my opinion, the Austrian Government has not provided a great deal of evidence to support its claim that health-related information endangers the physical and mental well-being of the consumer, I am prepared to accept that in a given context certain health-related information may affect the state of health of the consumer. That is even possible where the information as such is true and does not mislead the average purchaser. The instrument of a general prohibition on health-related information with the possibility of exemption is then appropriate, in principle, in order to eliminate or limit that risk.

How can one assess the impact on consumer health of non-misleading information? The advocate-general makes an attempt: 64. It is not easy to state precisely the circumstances in which the health of a consumer may be endangered. The only example which the Austrian Government has given, the claim ‘good for your health’, is difficult to assess without knowing the context of those words. If that information occurs on the labelling of a bag of apples, I really do not see how even a vulnerable consumer could suppose that a visit to the doctor can be postponed simply by eating apples.

Claiming that a snack, high in fat and sugar is ‘good for your health’, would be misleading and is prohibited. Claiming the same of apples is not misleading and any risk that one might imagine in that context is what the advocate-general calls a ‘residual risk’. This is another way of saying that Austria’s protective measures are not proportionate to their goal: unlikely risks do not justify a trade restriction such as a premarket approval procedure. The principle of proportionality11 is a safeguard against excessive use of legal or administrative powers and is laid down in Article 5 of the EU Treaty. In sum: incorrect and misleading information are covered by existing legislation. In addition, foodstuffs that are lawfully marketed are, in principle, safe and covered by a separate body of legislation. The advocate general is of the opinion that there are other means, less restrictive to trade, to address any risk that may be ‘left over’. For consumers with 11  The principle derives from the following case law, as explained in the Commission’s guide to the free movement of goods: Case C-390/99 Canal Satélite Digital [2002] ECR I-607, paragraph 33; Case C-254/05 Commission v Belgium [2007] ECR I-4269, paragraph 33 and case-law cited; Case C-286/07 Commission v Luxembourg, not published in the ECR, paragraph 36. ECR stands for European Court Reports.

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allergies or other conditions, the provision of extra information on the food label is such a measure. The listing of ingredients is compulsory, and ‘the Court assumes’, says the advocate general, ‘that the list of ingredients […] will be read by the consumer’. The Court ruled that the Republic of Austria, obstructing the free movement of goods, had ‘failed to fulfil its obligations’. Austria’s national rules were deemed incompatible with Community law and the Court invited the Republic of Austria to pay the costs of the trial.

Information Politics The Austria court case was an essential step in the future career of health claims on the EU market. The distinction between medicinal statements and statements about health was settled without any reference to science or nutritional concepts; without the slightest mention of food composition; without opening debates on evidence-bases. Law operates on its own plane of reality; legal objects have their particular mode of existence (Latour, 2010, 2018). As we can read from the excerpts of the advocate general’s argument, he positions himself as a reasonable and practically minded person. He doesn’t deny the particularities of actual situations, consumers, or foodstuffs, like the bag of apples in the hands of a supposed ‘vulnerable consumer’. But the bag of apples is a stage prop, an illustration for the sake of an examination that is concerned with legislation. And the main question is: are there any formal reasons that would justify additional legislation to that which already exists? Does the health claim, as a concept, pose any particular problem that is not already catered for? The Court’s answer is no. If a particular health claim—in the real world, on the market—crosses the boundary of the medicinal statement by referring explicitly to the treatment, cure, or prevention of disease, then existing legislation provides the means to deal with that. If a particular health claim is misleading, then it can be challenged with the aid of specific and concrete legal provisions. The policy of the Republic of Austria, establishing a preapproval procedure for health claims, can be seen as an anticipation to deal with all the specific cases that law’s formalism is not concerned with: in the real world, health claims will always be specific, related to particular foodstuffs and potentially misleading. Austria reasoned that health claims are guilty until proven innocent. The advocate general and the Court reasoned on a more abstract level: are there sufficient legal means to deal with this question of ‘guilt’ or ‘innocence’ so as to avoid a trade restriction?

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Although the Court does not make political statements, it may reinforce the political orientation of its legal sources: the legislation made by policymakers, and general principles such as the principle of proportionality. Historically, food legislation developed towards an emphasis on information over food composition standards. The court case on the French Cassis de Dijon liquor contributed to this with the principle of mutual recognition—a principle geared to protect the fundament of the EU market as set in the Treaty: the free movement of goods. The principle of mutual recognition and the principle of proportionality take us to the edge of law as a formal, self-referential area of discourse (De Sutter & Gutwirth, 2004). The vague contours of an ‘outside’ can be felt; a faint bleeding of other realities into law’s own mode of enunciation; a point where law articulates its speech with political elements exterior to it. And the reality that stands on law’s doorstep is the common market: the condition of possibility for the free movement of goods; the political-legal construct that performs the imperative of a free market. In the Austria court case, the principle of proportionality provided a means to assess trade restrictions on the basis of a risk, namely the risk that correct, non-­ misleading information about health could somehow drive consumers to potentially dangerous behaviour, like not seeing a physician when needed. This hypothesis signals the limit of a legal framework based on information: there are hypothetical risks left unregulated. The fact that the final means in a legal argument should be a very unlikely hypothesis is a token of the efficacy of that legal framework: all risks, save the most unlikely ones, are covered. In the years after the Austria court case, with the making of a European Regulation for health claims (Health Claims Regulation, 2006), the relation between information and the actual foodstuff underwent a number of transformations as we will see in Chap. 5. But until today, information is, along with food safety, the cornerstone of EU food law. Providing information to consumers is a way to avoid a multiplication of court cases over food composition; it allows for different manufacturing practices to co-exist (as with the example of chocolate); and it allows consumers to choose freely what they wish to buy, at least in theory. The provision of information avoids product-specific or vertical legislation and transfers responsibility to consumers as liberal and rational decision-­ making subjects. Information would indeed seem the perfect policy-­ instrument, the perfect currency almost, to make a free market possible. The problem is that ‘information’ as such does not exist. Information is an artefact, and its production is a process of negotiations involving the EU

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Commission and the EU Parliament along with the many stakeholders that are represented there. There is no information and no free market without the far-reaching intervention of national and European authorities through tedious regulation and law-making. Removing the so-called ‘paternalism of the state’, telling people what to eat and industry what to produce, has implied shifting regulatory intervention to other areas, rather than simply deregulating. The production of information is a core area of regulation in EU food policy and legislation. When the EU official told me on an April afternoon that ‘we see claims as information and not as food’, he spoke on behalf of a legislative community (‘we’)  and expressed a viewpoint that makes sense within law’s self-referential world. He had added that ‘claims are promotional tools, pieces of voluntary information and no-one is obliged to make them’. The Court had ruled that health claims are not contrary to existing legislation and that they require no additional measures that would obstruct or slow down the free movement of goods—certainly not a premarket approval procedure. The verdict was pronounced in 2002. In 2003, the European Commission, which had challenged the Republic of Austria before the Court, published a proposal for a Regulation on health claims (European Commission, 2003). Not only did the Commission propose a legal instrument that is more binding than a Directive, it also foresaw a premarket approval procedure for all claims on the European level. The next chapter details how this Regulation came about, and how health claims only became possible by establishing a very peculiar relation between ‘information’ and what that information refers to: the material realities of food and the body. If the boundary between food and medicine seemed to be a non-issue for the man I interviewed at the Directorate-General of Health and Food Safety, it was only so because the Regulation had made it so, by constructing the health claim as a particular kind of information.

References Canguilhem, G. (2015 [1966]) The Normal and the Pathological. Zone Books. De Sutter, L., & Gutwirth, S. (2004). Droit et cosmopolitique Notes sur la contribution de Bruno Latour à la pensée du droit. Droit et société, 1, 259–289. Devuyst, Y. (2006). The European Union Transformed. P.I.E. Peter Lang. European Commission. (1979). Council Directive 79/112/EEC of 18 December 1978 on the Approximation of the Laws of the Member States Relating to the Labelling, Presentation and Advertising of Foodstuffs for Sale to the Ultimate Consumer. OJ L33/1.

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European Commission. (2003). Proposal for regulation of the European Parliament and of the Council on Nutrition and Health Claims Made on Foods. COM(2003) 424 final. Geelhoed, A. (2002) Commission v Austria. Opinion of Advocate General Geelhoed. Delivered on 4 July 2002. Health Claims Regulation. (2006). Regulation (EC) No1924/2006 of the European Parliament and of the Council of 20 December 2006 on Nutrition and Health Claims Made on Foods. OJ L 404/9. Latour, B. (2010). The Making of Law. An Ethnography of the Conseil d’Etat. Polity Press. Latour, B. (2018). An Inquiry Into Modes of Existence. An Anthropology of the Moderns. Harvard University Press. Macmaolaín, C. (2007). EU Food Law. Protecting Consumers and Health in a Common Market. Hart Publishing. Van der Meulen, B. (2009). The System of Food Law in the European Union. Deakin Law Review, 14(2), 305–339.

CHAPTER 5

Liberal Food, Liberal Consumers

At the European Court of Justice, the advocate general needed a couple of small thought experiments to arrive at a decision concerning the precise legal status of health claims. He first distinguished health from disease—an issue with a history of philosophical and scientific debate—and he did it as you would quickly examine your new kitchen blender before getting started with the actual cooking: okay, this button changes the modes, and that one the speed. Okay, this is health, that is disease, now let’s get on with law. Next, the advocate general needed a hypothetical bag of apples and a couple of imaginary consumers to establish how and when health claims might possibly mislead consumers. The advocate general was generous in his reasoning, and ended up pondering in what way non-­ misleading information might still somehow induce the wrong behaviour. To be sure, the advocate general was not, in fact, inquiring into the nature of health, disease, food, or human behaviour. He was inquiring into the internal consistency of EU law itself. The health claim put law to the test and not the other way round. But law’s formalism as a self-referential system has a limit. The final touchstone for evaluating law’s consistency—food law’s consistency—is the dual principle of the European Common Market, inscribed in the Treaty that founded the Market and that underpins all secondary legislation: free trade and consumer protection. Through these principles, law articulates with politics. Had these principles been different, then food legislation and politics might have looked very different in turn. It is © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 K. Hendrickx, Health Without Bodies, Health, Technology and Society, https://doi.org/10.1007/978-981-99-4950-2_5

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important to recognize the contingent character of the current system of food production, trade, and law. With ‘contingent’ I mean that the system as such is not a logical or practical necessity. This doesn’t imply that the system was established by chance. Yet thinking under the sign of contingency is important, as it protects one from arguments that naturalize economics, trade, markets, and political structures. Such arguments will tell that things are the way they are because they must be so. Naturalization is a way of closing discussions. Naturalizing language uses the metaphor of ‘laws’, like the laws of the market and the laws of nature. It is ironic that the last place to go and look for such ‘laws’, in their meaning as fixed regularities and universal necessities, is law itself! Again, the basic principles of the Treaty might have been different, and food law in particular might have been different. Contingency then requires one to ask how things are being kept in place, despite their non-necessity. If the order is not given by nature, then who is ordering things and how? Part of that answer is in this chapter, where I single out key issues in debates that were making law for health claims. These debates were held in large part in the European Parliament between 2003 and 2006. Although there was no single person, party, or organization that had all the power to orient what would become the final adopted Regulation (Health Claims Regulation, 2006), the principles of free trade and consumer protection acted as signposts channelling the discussions. This means that the combination of free trade and consumer protection privileged the provision of information as the political and legal strategy to stick to. Information is a concept that seems logical, natural, and intrinsically good: the more information the better, especially with respect to food! Every bit of information about a food product seems a step farther on the road to full transparency; every bit of information will contribute to revealing the full picture in the end. And all bits of information, plus the full picture, should provide an arrangement in words that faithfully represents or mirrors the configuration of the thing. In the case of health claims, it should also faithfully convey in words what the thing does when it encounters a human body. However, a closer look at the Parliamentary debates and their outcome suggests something entirely different: it appears that some pieces of information can only exist at the expense of other pieces. The making of information does not lead to a full and coherent picture in the end, and so there are, in fact, no ‘pieces’ of information in the first place. The puzzle metaphor is misguided, and we will need another way to understand what

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happens when information is turned from a legal concept (as in the court case from the previous chapter) into something that is referring to actual food and health and bodies. Information is artefact rather than fact.

Things, Commodities, and Consumers Bruno Latour (2004) famously took a contemplation by philosopher Martin Heidegger in a new direction. Heidegger once insisted that the word ‘thing’—Ding in German—etymologically designates a place of gathering or assembly. With his long-standing curiosity in how scientific  objects and facts become stabilized, it is not surprising that Latour became interested in a vocabulary to designate things that have not (yet) been stabilized through scientific experiment, or political deliberation, or both. And ‘thing’ turned out to be an accurate term in that vocabulary: a meeting place; a pulsation of concerns that might take one definite form or another, depending on the deliberations in the assembly. The European Parliament is such an assembly  where things reveal themselves as being composed of competing concerns, passions, and strategies within that assembly. In the European Parliament, the health claim was an appeal, an innovation, a guiding tool in consumer choice architecture, a promotional tool, a public health strategy, a food component, a new science of nutrition, a functional food. Health claims appeared as complicated ‘things’ rather than as information. The word ‘Parliament’ quite accurately says what the assembly does: talking (Parliament derives from the same root as the French parler). It is an assembly where people come together and talk in order to make laws. What circulates on the European Market, however, are not things. They cannot be because economic transactions must have a beginning and an end, and so must the goods or products that are the subject of those transactions. Market sociologists combine insights from the anthropology of markets with science and technology studies to study how goods are (temporarily) ‘pacified’, ‘domesticated’, or ‘disentangled’ from their multiple linkages with territories and living beings (Caliskan & Callon, 2010). Harmonization (e.g. imposing a common method to qualify goods) and standardization (making goods compatible to fixed standards) are two methods used to make ‘things’ manageable by abstracting or detaching them from their territories. The basic tenet in this strand of research is that products, with a production history and changing forms only become ‘goods’ if they become temporarily stabilized, i.e. qualified and

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comparable or ‘calculable’ (Callon et  al., 2002). Markets act through a dialectic of attachment and detachment: an object becomes detached in order to circulate, but in order to have competitive advantage it must be rendered capable of attaching itself to certain publics, values, and tastes. The object is at once comparable and singularized (Ibid.). In this view, demand and supply do not influence each other at a distance, but through a multiplication of mediations between the two (Hennion & Méadel, 1989). The theory that has been developed with the help of these notions is one that doesn’t want to decide a priori what is ‘economic’ and what is not, but rather how things become economic—in a process called ‘economization’ (Caliskan & Callon, 2009, 2010). Attention shifts from the terms of exchange such as production/supply—consumption/demand to all the sorts of mediations and ‘market devices’ (Callon & Muniesa, 2005) that allow comparison, calculation, qualification, and valuing—in short, economic framing. This framing also includes how consumer ‘choice’ is engineered and how consumer culture is the outcome of marketing technologies and devices (Cochoy et al., 2017). In The Logic of Care, Annemarie Mol (2008) approaches the market and the issue of consumer choice differently: through an empirical and philosophical exercise, she contrasts choice and care as two possible versions to organize the experience of a condition such as diabetes. She does not focus on market devices but on ‘situations of choice’ from the perspective of someone who is supposed to behave like a consumer in a situation of choice rather than as a patient in relations of care. Saying that economic transactions must have a beginning and an end takes on a different meaning when thought in contrast to the open-ended relations of care that she ethnographically describes for diabetes patients. It does not focus attention on the technical mediations happening in-between the beginning and the end of the transaction, but it obliges to think what is asked of us in that situation of choice, and what the consequences are of that demand, including how it fashions the relation of a patient/consumer to her or his body. Here, consumer choice enacts a different version of living with diabetes—a version that is politically contingent and not universal, natural, or necessary, but which has a history in liberal thinking. Mol brings to the surface a philosophical anthropology of liberalism that articulates freedom and choice with the ways in which one can and cannot have a body. In what follows, we will not be on the market itself but in the Parliament that makes laws for a liberal market economy. The Parliament is a place of words and ‘things’ in its old etymological sense, and law-making is the practice that

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disentangles words and things; extracts words from things; and redefines the thing according to the words that matter. The health claim is an unstable concept, referring to food, health, and bodies. Turning the health claim into an object of governance requires stabilizing the fleeting references to what bodies, health, and food may mean. And these deliberations depend on the specific yardsticks of the liberal market economy: the politics of information and the figure of the consumer.

A Legislative Proposal Food is a particularly complex thing, not only in its internal chemical composition, but also in its attachments to national systems of production, tastes and preferences, tradition, and culture. I say ‘national’ because many juridical and legislative battles in the EU have opposed Member States amongst one another with respect to food’s thinginess. Disagreements arise concerning names, production standards, composition, and all sorts of aspects that make two products look like the same commodity while they’re not (as with the famous ‘chocolate debate’). In theory, everyone has to agree on the terms according to which a complex foodstuff is transformed into a commodity. In practice, and after a number of long-­standing controversies and court cases before the CJEU, an increasing body of horizontal legislation since the late 1970s avoids having to come to such collective agreements in many areas of food law. More precisely, it is the subject of agreement that changed: Member States and the EU institutions (Parliament, Council of Ministers, and European Commission) need to agree on information about food and not on food itself.1 Food is commodified through information. But this still leaves open the question how that works, especially with health claims adding an informational layer to foodstuffs which are, in most cases, already commodified products. And it’s not just any information: after the Austria verdict in 2002, the health claim was sitting in the waiting room to become a new type of truth-­ statement in the marketplace. A truth-statement that appealed to food’s troublesome materiality—its thinginess—and to the human body. And the health claim was sitting uncomfortably close to medicinal claims, for which

1  With the exception of Novel Foods as foods that are new to the EU market. These are under a different EU legislation which includes the characterization and safety of the food in question.

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an entirely different production process exists, different companies, different regulations, and a different market. Only months after the Austria verdict, the European Commission rolled out a draft regulation for nutrition and health claims which I will refer to as Proposal 424 (European Commission, 2003). The proposal is a series of concepts and measures that turn issues of food, health, and the body into a matter of statements: health claims. Proposal 424 is an important document, because it initiated a law-making procedure in the EU.2 The Commission has the sole initiative to propose new legislation. A legislative proposal launches the so-called ‘ordinary legislative procedure’. This procedure involves hundreds of people organized in different committees and may take several years. The European Parliament and the Council of Ministers (representing the interests of the Member States) read the Commission’s proposal and comment on it. Modifications are made and a second and third reading may be necessary. In the end, the proposal may be adopted or rejected. The proposal, as we will see, was accepted and turned into a Regulation that entered into force in 2007  (Health Claims Regulation, 2006). To get to that point, the Parliament, as a place of words (parler, palabra) needed to define a particular relation between words and things; between statements and food. This implied stabilizing not only the health claim, but its referents as well (food, health, the body) so that anyone could safely assert that there is food ‘on the one hand’ and ‘information about food’ on the other. Put differently: what we will scrutinize now is how information becomes possible and actionable; we will encounter the politically contingent conditions that precede the very nature, form, and content of information; the conditions of possibility without which information would make no sense; information’s constitutive outside; information in formation.

2  Proposal 424 and reports from this ordinary legislative procedure (from the Commission, Parliament, the Council and the Economic and Social Committee) are available on the website of the Parliament’s Legislative Observatory. The code of this procedure file is 2003/0165 (COD). Weblink: http://www.europarl.europa.eu/oeil/popups/ficheprocedure. do?id=23510. This enables one to track the development of the decisional procedure and the opinions, comments, and amendments of the relevant actors and institutions involved (last verified on December 22, 2022).

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Risk Factors At the CJEU, the advocate general separated health from disease. He stated that, logically, health is the opposite of disease: statements about health do not imply anything about disease; these are different matters. Health claims are not medicinal statements. No ontologies attached. In proposal 424, the Commission picks up on this: Very recently, in case C-221/00, Austria v Commission, the European Court of Justice interpreted the existing labelling Directive as banning all health claims relating to human diseases. In the light of the technological innovation in the food sector and the demand from consumers and industry alike it is proposed to set a new legislative framework on the use of claims. (European Commission, 2003:2, point 1)

The question put forward here is whether the advocate general had not closed the door between health and disease too quickly. The references to innovation in the food sector and the ‘demand from consumers’ indicate that we have switched rooms and rationale: from the court room to the policy room, and from formal reasoning to engaging with the social and material nature of products, technologies, and interest groups. It is agreed that health claims can make no reference to the curing, treating, or prevention of disease. But what if we suppose there is some intermediate step between health and disease? [A] difference between “prevention” and “reduction of a disease risk factor” is made and a derogation is provided. Indeed, it is acknowledged that diet and certain foods can make important contributions to the support and maintenance of health, and that diet and certain foods can play a role in the management of certain disease risk factors. (European Commission, 2003:7, point 26, my emphasis)

An example of such a product, already on the market when the Commission made Proposal 424, is cholesterol-lowering margarine. Cholesterol is considered a risk factor for cardiovascular diseases. In that sense, lowering cholesterol means lowering a risk factor, without curing the disease. It could be argued then, that it is a form of prevention, which would turn the food company’s claim (Unilever) into a medicinal claim, but this is precisely where the concept of ‘reduction of a disease risk factor’ makes all the difference: a risk factor is only one factor among others, and

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by definition cannot prevent anything in and by itself. But it allows extending the realm of health, while drawing a new boundary with disease. At the same time it displaces a sectoral boundary between the food industry and the pharmaceutical industry. The advocate general had gotten rid of a potential confusion between the concepts of health and disease. With the ‘reduction of a disease risk factor’ the Commission and its stakeholders now got rid of the advocate general. They reinterpreted case law, because it was deemed not in keeping with technological innovation. The ‘reduction of a disease risk factor’ concept had not fallen from the sky. Food companies promoting cholesterol-lowering margarine were using it, and the concept was promoted in a number of publications, many of which issued from two main research projects coordinated by ILSI Europe (see Chap. 3) and funded by the Commission itself. The Commission refers to them in its legislative proposal, and there are no traces of discussions that put the concept into question. The risk factor leaves the door ajar between health and disease. Is this just a matter of vocabulary? Is it just a conceptual subtlety that allows companies and advertisers to use risk factor terminology and give more weight to the otherwise vague notion of ‘health’ on food labels? As we saw in Chap. 3, there is a more precise reason for this subtle alignment between the normal and the pathological. ILSI and its claim technicians anticipated a regulatory requirement for scientific proof for health claims. And they wanted to set the terms of those requirements: through the risk factor, the realm of health could be extended as close as possible to that of disease and therapeutics, while keeping a safe distance from the pharmaceutical sector and the extensive and costly burden of scientific proof for medicinal claims, such as clinical trials. The risk factor suggests an ontology of health and disease sitting on two extremities of a continuum, while in practical terms it allows keeping the clinic at bay in stratagems of proof: risk factors are not symptoms and their identification can be based on literature reviews of research that food companies will not have to repeat. Risk factors are also a move away from the experimental exigencies to establish a relation between a therapeutic agent and a symptom in a clinical trial. The risk factor is a mediating instance between the normal and the pathological, and the concept was adopted in the Regulation. The final Regulation distinguishes claims involving risk factors from ‘function claims’ that do not make any reference to risk factors. Function claims are about maintaining a ‘normal’ operation of body functions. This, again, is terminology drawn straight from ILSI’s stratagem. ILSI’s

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nutritionism redefines the normal state as a state that is constantly under threat a suboptimal state.

Nutrient Profiles Proposal 424 and the final Regulation settled the question what types of claims can be allowed: nutrition claims (‘rich in calcium’) and health claims (function claims and disease risk reduction claims, the latter based on risk factors). But another question is whether these claims can be made on any type of food. Can high sugar soda drinks enriched with Calcium be said to help you maintain strong bones? To avoid claims being made on, for example, soda drinks high in sugar content, alcoholic drinks, or snacks rich in salt and fats, Article 4 of the proposed draft Regulation stipulates the need to establish ‘nutrient profiles’ (European Commission, 2003). These are criteria concerning the composition of foodstuffs in order to determine which foods are eligible to bear health claims in the first place. This was a much more troubling issue during the legislative procedure than the scope of possible claims, between health and disease, that I discussed above. In Proposal 424, the Commission cautiously introduces the subject of ‘nutrient profiles’ as follows: Some consumer organisations in the European Union consider that products that do not have a “desirable” nutritional profile, such as candies, high salt and high fat snacks or high fat and sugar biscuits and cakes should not be allowed to bear claims. For example, a “low fat” claim should only be allowed if the product does not contain high quantities of sugar or salt; or a “high calcium” claim should not be used on a product with a high fat content. They consider that such foods would become more attractive because of the way in which they will be labelled and advertised and many consumers that are currently eating them in moderation would consume them in greater quantities. This, they believe, would have a more immediate negative effect on the dietary habits of certain particularly vulnerable sections of the population, like children and adolescents. This view is also shared by some Member States. (EC 2003: 4, point 13, emphasis added)

And the Commission goes on in the next point: Although based on understandable concerns and important arguments […] [t]he concept of prohibiting the use of claims on certain foods on the basis of

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their “nutritional profile” is contrary to the basic principle in nutrition that there are no “good” and “bad” foods but rather “good” and “bad” diets. (EC, 2003: 4, point 14)

If that is so, then what is the point in making health claims for individual foods in the first place? Why make a regulation that allows health claims on individual foods if foods are neither good nor bad? It must be kept in mind that the envisaged Regulation wanted to create legal certainty for industry, equal conditions of competition, a favourable climate for innovation and the free movement of foodstuffs. Prohibiting health claims altogether was not presented as an option. So the question was not if health claims should be allowed, but how and under what conditions. The Commission had to try and strike a balance between the interests of its various stakeholders. For industry, represented through special committees in the Parliament, evaluating foodstuffs with nutritional profiles was to be avoided, as it may privilege or disadvantage some sectors over others (e.g. diary versus snacks and drinks). Food companies also feared that such profiles would lead to other uses, such as ‘traffic light labelling’ (a colour code to rank products from healthy to less healthy); restriction on the contents of advertisements; or the taxation of certain products (ERNA, 2011).3 In the legislative procedure that the Commission initiates with its proposal, the proposal is sent to the European Parliament and to the Council of Ministers (representing the Member States) for a first reading with comments and amendments. In the report of its first reading, the Committee on the Environment, Food Safety and Public Health comments as follows: An effective strategy for helping consumers to choose a good diet in full knowledge of the facts is not one that classifies foods or categories thereof into ‘good’ and ‘bad’ food. It is generally accepted and scientifically agreed that there is no such thing as ‘good’ or ‘bad’ foods; there are only good or bad diets. (European Parliament, 2005: 38, my emphasis)

The issue of nutrient profiles—which part of food can be made to matter as information?—also involves the profile of the consumer. The latter 3  ERNA is the European Responsible Nutrition Alliance, an international federation of food and food supplement industries.

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must be able to choose in full knowledge of the facts. We will return to this remarkable statement below. Before that, let us see which decision was finally taken with respect to nutrient profiles. The report also contains the input of two other committees: the Committee on Industry, Research and Energy, and the Committee on the Internal Market and Consumer Protection. The Committee on Industry, Research and Energy sees the problem as follows: Your draftswoman takes a very critical view of the Commission proposal, and considers that many aspects require changes. […] There are, in principle, no good or bad foods. The decisive factor, instead, is the proportions in which foods are consumed. Moreover, the draft regulation largely leaves open the precise definition, and establishment, of the concept of a nutritional profile. Until this is resolved scientifically, nutritional profiles should not be introduced. (European Parliament, 2005: 40–41, my emphasis)

The same protective spell is formulated, and imputations against food are redirected and transferred upon the consumer. Next, science is again mobilized, especially for putting off the introduction of nutrient profiles. For the draftswoman and the committee she represents, nutrient profiles should not remain what they are at the moment: a political problem. Waiting for the issue to be ‘resolved scientifically’, then, means avoiding the issue and its problems. The negotiations that followed involved a second reading of the Commission’s proposal by all parties, and the search for a common position between the Parliament and the Council. Surprisingly, these negotiations did lead to an agreement on the introduction of article 4 about nutrient profiles in the final Regulation in 2006: By 19 January 2009, the Commission shall […] establish specific nutrient profiles and the conditions, including exemptions, which shall be respected for the use of nutrition and health claims on foods and/or categories of foods. (European Commission, 2006, Article 4 (1))

Why were nutrient profiles introduced, despite fierce resistance from within the Parliament? This is not clear from written sources alone. What we know is that the Council, representing the Member States and also involved in the negotiations, always expressed itself in favour of nutrient profiles. The Council, indeed, was always in favour but the reasons for that are not clear from written documents alone. For example, in the Council’s

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position ‘2003/0165–08/12/2005’, The Council expressed itself in a dispassionate manner and in favour of nutrient profiles, seeing no problem in establishing them scientifically and objectively. A consultant in regulatory affairs who closely followed these negotiations recounts that most Member States didn’t realize at that time what the consequences of such profiles could be for domestic industry and export (e.g. would cheese get a bad reputation because of its high fat and salt contents?) and that some Member States changed their opinion afterwards, while others kept on defending them.4 But even the consultant had lost track of the issue at some point. The issue got lost, or was put aside, in the political arena. No doubt many were hoping that the issue would indeed get lost and disappear.5

Information’s Constitutive Outside It is clear that food’s materiality enters through the backdoor of a legal system that champions the provision of information over the regulation of food composition. In a sense, what we have seen so far is how lawmakers and policymakers try to establish the conditions in which food emerges as an object of enunciation, and not simply a commodity (is there ever anything as a ‘simple commodity’?). There is a tension between food’s materiality and that which can(not) be said about it. To put it more accurately, parsing out what counts as food and what counts as information is what is at stake in the legislative procedure. The debates on risk factors and nutrient profiles so far show that information only becomes a workable notion once a number of other decisions have been taken. We can say that food’s materiality is the constitutive outside of information: the material dimension of food, its chemical complexity, emerges as a counterpoint against which what will count as

 Interview, 14/03/14.  Yet it turned up again in 2020, in a report evaluating the Claims Regulation (European Commission, 2020). The report stresses the need to establish nutrient profiles. In 2022, 15 years after the NHCR entered into force in 2007, EFSA released a first opinion on the criteria that could be taken into account when setting nutrient profiles (EFSA, 2022). It is an advisory document, the implementation of which is at the discretion of the European Commission. 4 5

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‘information’ is going to be defined (Barry, 2013).6 Matter is part of meaning here in the sense that the way in which food’s materiality can or cannot be politically taken into account is the main stake of the Parliamentary debates. First of all, claims are about specific nutrients (vitamins, minerals, fibres, etc.) or added elements (like bacteria) and not about the product in its entirety, even though a probiotic claim is easily perceived as being ‘about’ the yoghurt itself. Introducing nutrient profiling would change the terms and conditions of the information to be placed on a food label. Establishing nutrient profiles produces information that might invalidate information about a particular food constituent: information about an ingredient might very well become incompatible with information about the product as a whole. The problem repeats itself when considering how nutrient profiles should be established: should sugar, fat, or sodium content be assessed across the board (i.e. the same profiling scheme for all foodstuffs) or per food category (i.e. cereals, cheese, biscuits, soda drinks, etc.)? And what about the criteria themselves: which reference amounts should be used for sugar, fat, and sodium? Is a scoring system preferable over a threshold system? Which sugars and fats should be taken into account?7 These are issues of classification, with real consequences for what will eventually be considered as factual information. Every decision in the making of information redefines its object at the same time; the referent moves along with the statement; every step forward is a step sideways. These difficulties and the fear of discrimination against certain products have led to putting the issue of nutrient profiles on hold. Bracketing food itself becomes the condition of possibility to regulate the production of information about food ingredients. This is the paradox of the Claims Regulation: health claims become an object of government by disregarding food itself! As for risk factors, this concept made 6  Barry (2013) theorizes information as an interplay between transparency and concealment. He analyses a series of knowledge controversies concerning the construction of the Baku-Tbilisi-Ceyhan oil pipeline. Barry documents how this construction became a political experiment in transparency about the pipeline in terms of information. Information, however, is never readily available to take, but it must be produced. Information, as Barry shows, becomes a stake in a political climate with transparency among its core values. Rather than simply bringing everything to light, practices and controversies related to transparency revolve around which information is valuable and which information is not. Barry takes the term constitutive outside from Judith Butler. 7  Proposals to answer all these questions about nutrient profiles have been proposed by, no surprise, ILSI Europe (Tetens et al., 2007) and the Nestlé food company (Nestlé, 2009). See also Verhagen and van den Berg (2008) and the proposal by EFSA (2022).

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indirect references to disease possible in the production of information. The risk factor is a new type of information that derives its meaning from a redefinition of health as suboptimal or ‘at risk’, in a body where health and disease are two states that depend on mechanical, quantitative interventions: more of this and less of that. Considering risk factors as information means mobilizing a particular ontology of health and disease. In sum: the Claims Regulation defines information and its object or its referents at the same time. A stable distinction between information and its referents is the outcome of a process and not the starting point. In these debates and political choices to make, information does not reside in a neutral and objective realm of reality, waiting to be uncovered and made public. Political choices condition its very production in the first place. Information is politically partial. Not because we see only ‘part of the picture’. It is not a matter of bits and pieces that can be assembled into a full coherent picture. What the legislative procedure shows is that specific ‘pieces’ of information can only exist at the expense of other pieces. Again: as health claims are about specific nutrients or food constituents, the food which they are part of might invalidate the health claim if it were taken into account! The political dimension does not play out in terms of ‘complete versus incomplete’ information, but it is about deciding in which direction the object and its referents are going to move. I call this movement referential displacement (Hendrickx, 2019). Governing by information is the EU’s strategy to minimize intervention in the market, but the constitution of information is in itself a considerable intervention. The question of information and the limits of interventionism not only concern food but also the recipient of that information: a figure called ‘the consumer’. In the citations above, one political representative stated that consumers must be able to choose ‘in full knowledge of the facts’. These facts, as we have just discussed, are the outcome of a political process that reworks the objects and referents of information—an exercise in material-semiotics. But what if the end-result—the information on the food label—is incomprehensible for the consumer? Here is a theoretical problem for lawyers and policymakers: is (in-)comprehensibility due to the nature of information or that of the consumer? How clear is information and how smart is the consumer? What is the relation between information and the figure of the consumer? As we will see in the next section, the consumer is not just an assumption or vague general reference, but a technical category

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with its own constitutive outside. Just like food itself, the consumer in many ways haunts food law and policy, and we will turn to this now.

Who, or What, Is the Consumer? A food label assumes and implies a reader. In the marketplace this reader is called the consumer. The consumer is a bit of an odd fellow: he or she is a lead character in food legislation and a stand-in for real people, representing all and none of them. Ever since the first legislation on food labelling, there have been attempts at defining this generic consumer and his/ her ‘character’ in the food label story. As a consequence, there is a wavering in legal texts between different versions of this generic consumer, ranging from an empowered, educated consumer, over an average consumer to a vulnerable consumer (Meisterernst, 2013; Edinger, 2016).8 At one point, CJEU case law settled for a consumer who is ‘reasonably well-­ informed and reasonably observant and circumspect’ in order to establish a benchmark defining the ‘average consumer’, and—more precisely—to establish a yardstick to assess when, and for whom, information might become misleading (Ibid.). A vulnerable consumer does not require the same information standards as an educated consumer. With the figure of the consumer, it is the scope of regulatory intervention which is at stake: the liberal dilemma between freedom and governance. The consumer is a pivotal element to settle technical legal issues in the face of that dilemma: the figure is considered a necessary benchmark or yardstick. Consumers are all different and so are their individual preferences and circumstances. For that reason, it is practically impossible to standardize consumers’ need for food information. Nevertheless, the establishment of uniform criteria for the labelling, presentation and advertising of all foodstuffs that enable informed consumer choices, is precisely what EU food legislation intends to do. (Edinger, 2016, 10) 8  The figure of the consumer reflects this wavering between market and consumer protection, and legal scholars do not necessarily agree on how to interpret the evolution of legislation and case law that address the profile of consumers. While some say that a trend towards more protection and intervention is discernible, accompanied by the image of a more vulnerable consumer, others say that what is protected is not the (vulnerable) consumer as such, but the quality and quantity of information allowing consumers to make choices—with the aim of empowering consumers rather than paternalizing them. Either way, information is considered as objective and factual.

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The consumer is a necessary fiction, a functional fiction, to enable legislation on the basis of informed choice. So, to assure the free movement of goods, EU food law regulates the complexity and diversity of foodstuffs, and the protection of consumers, through the provision of information. To assure the freedom of choice, EU food law regulates the heterogeneity of people within its polity through the figure of the consumer as a recipient of information. Information is the fundamental currency, and the form and content of that currency depend on the figure of the consumer. Law has tried to formalize ‘the average consumer’ as a rationalist legal fiction in order to get on with law. People closer to the spheres of policy and decision-making question this formalized notion, and focus on behaviour instead. According to the rationalist model of choice, an informed consumer who is rational can only choose right. But when a consumer does not choose right, (s)he becomes the subject of behaviourist models. Even if you have education you have to make a conscious effort, I mean, look at the people that are smoking! The education is there, the information is there, but ... smoking … is … generally … ehm … [hazardous] to health, and yet people continue to smoke. Look at the advice you have now, that today we have a sedentary life, and therefore you should take exercise. You go [home after] your work, you eat, you put yourself in front of the television … you have to make a conscious effort to adopt a healthy … attitude … Bon. That’s why we say: individuals should have the responsibility. The State cannot do everything. That’s why you have the information … if you want to use it, it is up to you, but we provide it, we cannot impose because sometimes now there is the question: ‘ah, labelling does not work’ because the consumers do not look into the label, they don’t care, therefore you have to control the composition of foods; therefore you have to impose [norms on] the quality of the fat; the amount of added sugar; and that’s something [where] we have said: NO. (official at DG SANTE, personal interview)

I have quoted from this interview at some length because the way of reasoning is so particular and curious. The citation wonderfully articulates a paradoxical tension between information on the one hand and the freedom to choose on the other. What troubles this policymaker is that people, in their freedom to choose, do not always choose right. So despite the fact that people may choose what they want, they choose what they want! Consumers are considered rational as long as they choose what is right, in light of the information proposed to them. With the information being ‘out there’ for them, it is impossible not to choose right if you are rational.

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If people do not choose right, they are not being rational, because the information is there. This means that, logically, people on the ‘wrong’ track have not made a bad choice, because they are no longer choosing. Behaviour happened. Behaviour and its causes, rather than choice, have slipped in-between the consumer’s mind and the information. This implies that consumer protection—protecting consumers from misleading information—is not about protecting people, but about protecting the assumption that information should be the cornerstone for governing a free market. The consumer is a legal fiction that is technically necessary as the touchstone of information. When actual people act ‘wrong’ (by not reading the information for example, in behavioural mode), information will not be called into question, nor the scope of choices that the market is offering, nor the fact that buying ‘wrong’ may be the result of a deliberate choice that a person makes for reasons that are beyond the mindset of the imagined consumer. In contrast, it is possible to regulate food composition or quality in ways that partly change the terms of choice and the foods to choose from, but that is a more complex and far-reaching form of intervention. The introduction of new labels for accredited practices of sustainable farming, fair trade, organic, and so on are ways to change the terms of choice on the market and politicize the market itself (Laurent & Mallard, 2020).9 But the citation above from a person with a leading function at the Directorate-General of Health and Food Safety (SANTE), clearly pinpoints the limits of intervention in the regulation of health claims. The punchline of the argument above is: ‘… and that’s something where we have said NO’. Even if the labelling does not work, too bad, the EU is not going to control the composition of foods, and the speaker in the interview indeed identifies DG SANTE with the EU and with a state: ‘the State cannot do everything’. The examples of people smoking and ‘putting themselves in front of the television’ are the kind of false ethnographic vignettes that we often hear, void of sociological pertinence because they refer either to no-one, or to ‘people’ that usually do not include the speaker (which boils down to the same: they are about no-­ one). Such little fictions are void of real content because they are mobilized in the service of an argument. In this case the argument concerns the limits of state intervention. People have the information, so why do they ‘put themselves in front of the television’ instead of exercising or cooking 9  Some forms of accreditation, through third parties, are themselves subject to market dynamics and competition. See Laurent and Mallard (2020).

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up a decent meal? ‘Put themselves’: the self doesn’t seem to have real agency; will-power seems deficient; these people are moved somehow by another self which is automatism—in short: behaviour—not will-power. The scope of intervention is arguably an issue in any political system, but the point is that the problem takes on a specific form within a liberal market economy which is founded on a divide between rational acts of choice and involuntary causes of behaviour. The liberal market economy mobilizes a philosophical anthropology with a long-standing tradition in the West, as Annemarie Mol (2008) reminds us, dividing mind and body in terms of agency. Freedom, in ancient Greece meant not being a slave, and mastering one’s body. For Christianity it means taming the passions, and in Enlightenment thinking it means that the body does not interfere with the mind. The mind is the seat of reason, while the body is something one risks falling prey to. The mind is the locus of will-power to be exercised over the body while the body is a bundle of natural processes. The point, for Mol, is that the scope of what ‘politics’ and freedom may mean in this tradition is restricted to a meeting of rational minds in conversation, which in practice means free men, not slaves, not women. Slaves and women are considered too much involved with their bodies and with forms of labour (building, cooking, cleaning, etc.) that do not pertain to the realm of higher thought. Here, the study of Marianne Valverde (1997) on alcoholism in the early twentieth century is of particular interest. Alcoholism was problematized, diagnosed, and treated according to what we might call with Foucault the discourse of that time. Discourse is not a mindset, or Zeitgeist, but a space composed of institutions, medical practice, political visions, and gender relations in which alcoholism was problematised in a particular way. Valverde argues that, within that problem space, alcoholism emerged as a ‘liberal disease’. Alcoholism was considered at the time as an indication of a lack of will-power over bodily impulses and dependencies. That much was clear to medical experts of the time, from their observation of alcohol problems in the lower classes and in women. But this characterization of alcoholism also posed a diagnostic problem: how can free, educated, politically active, rational men of the upper class be diagnosed with what is the opposite of all that they represent—indeed the central values of their society? As Valverde’s historical analysis shows: by posing a different diagnostic. They are not really alcoholics in the sense that they would be unable to control their will-power. Rather, they are eccentric individuals with a slightly unfortunate habit that goes with their original

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personality. They were invited to go to luxury retreats where they enjoyed a personalized treatment, while labourers were sent to reformatories. Alcoholism was considered a disease of the will, a lack of will-power, to be cured with will-power. This represents, for Valverde, a paradox inherent in liberalism. As a consequence, the focus on free will made it difficult, next to impossible, to treat alcoholism as a medical problem. This shows how deeply rooted the contrast between consumers and patients is: they are different beings with different bodies. While it is not clear from legal texts whether ‘the consumer’ is gendered, the problem of health claims does remind us that the consumer has a body. With that body standing in the way, it was not possible to regulate health claims according to the principle of mutual recognition from case law. Since 1979, this principle provided a solution to trade barriers between states with different standards of food production, quality, and composition. This principle accepts difference by disregarding it. It turns difference into an inoperable category; an issue that should not be made to matter. All foodstuffs are equal, even if they are not. However, claiming that some foods are healthier than others brings another type of difference into play: a difference in food’s relation to the human body, and, as some foods claim, the mind. Metabolic difference. This brings food back into the picture as that what we ingest and metabolize, not just what we buy (Sanabria & Yates-Doerr, 2015). It brings ‘consumption’ back to its etymological origins: a set of related meanings that oscillate between eating, enjoying, devouring, and destroying (Graeber, 2011). The consumer has become the central figure in the liberal market economy and the yardstick for laws and regulations based on labelling and the provision of information. With health claims on food, the deeper and richer layers of consuming –an act that is always at risk of tipping over into the uncontrollable and irritational—come to life again in the same figure that has now become the touchstone of freedom, will, and rational choice. In the middle of it all. This, I think, offers a way to understand why health claims, despite their seeming banality and absurdity, are such a sensitive issue. Sensitive enough to establish a premarket approval procedure—a type of intervention that is remarkable for something considered as merely a ‘promotional tool’. My investigation of that ‘promotional tool’ has led me to identify constitutive outsides: food itself, the body, and the clinic. A constitutive outside points to a presence, rather than an absence, at the heart of a regime of governance that constitutes itself in contrast to what it puts at a distance ‘outside’. The carnal, bodily, unthinking consumer is the constitutive

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outside of the liberal market economy. The clinical body is the constitutive outside of ILSI’s claim technicians. Food as biochemistry is the constitutive outside of food legislation in Europe. Different articulations of the same fundamental problem: the irruption of the unpredictable or uncontrollable at the heart of the common market.

What Can(not) Be Said About the Body The political-juridical fabric of EU food legislation is a problem space: a space in which specific problems, rather than others, occur. Producing reliable information is a task and a problem within this space, and I analysed how intervening into the nature and form of statements cannot be done without redefining what they refer to—referential displacement (Hendrickx, 2019). We observed how food becomes an object of enunciation; how health claims become information. The health claim is not an informational add-on to food, to be mentioned or omitted (‘by the way, it is also good for you’). Legislating health claims as a form of ‘information’ is not about moving pre-existing facts from the shadows into the light of day, but it is about creating the conditions for a new type of statement. Next to specifying the conditions under which health claims can become information in a situation of choice, Proposal 424 and the final  Claims Regulation also stipulate how, and by whom, health claims must be assessed scientifically: Health claims should therefore only be approved for use on the labelling, presentation and advertising of foods on the Community market after a scientific evaluation of the highest possible standard. In order to ensure harmonised scientific assessment of these claims, the European Food Safety Authority (EFSA) […] should carry out such assessments. (European Commission, 2003: 8, point 29, my emphasis)

Science of the highest possible standard. Is there a concern for public health after all? One could argue that the EU uses the means of common market legislation, including information politics, to extend its official jurisdiction and pursue a de facto health policy. This is a way to circumvent the interventionist dilemma: it allows intervention to some extent, while continuing to pursue the common market project as the main aim of the EU as a polity (Laurent, 2022). The Claims Regulation and the regulatory procedure that led to it bear the traces of this ambiguity. However, a

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premarket approval procedure is a particularly strong type of intervention: it installs a gatekeeper. Are the reasons for doing so related to public health? Considering liberalism’s philosophical anthropology, and how it has translated into a cornerstone of the free market, the reason, I would argue, is not to pursue a de facto health policy, but to protect information and a type of freedom and politics that has always been at risk of being troubled by its own constitutive outside: the unpredictable, uncontrollable, irrational—invalidating from within the cornerstone of liberal politics, freedom, and information. Consumer protection is not about protecting people (as in public health) but about protecting the assumption that information is the best way to govern a free market. It offers the possibility to continue and credibly assume that the right conditions ‘to make choices in full knowledge of the facts’ can be ascertained.10 There is additional circumstantial evidence for arguing that an appeal to science is not necessarily done in the name of public health. After a number of food scandals, and the 1996 BSE crisis in particular, the European Commission had lost credibility as a mediator between Member States and the market (Majone, 2000). EFSA was created in 2002 to restore confidence in the Commission and the European market, as an agency speaking in the name of science, independent from political matters. We will look at this particular value of independent science more closely in Chap. 7. For now, what matters is that the food production system has not fundamentally changed after the food scandals. We have witnessed no significant intervention in the production landscape and the food supply chain, apart from measures to enhance traceability. Again, as with food itself, information became the field of political mobilization and not the composition of the production and supply system. EFSA was created to separate risk assessment from risk management; to separate scientific experts (EFSA) from political actors (the Commission). This in order to purify information as objective and neutral. The proposal to appoint EFSA was initially met with resistance in the European Parliament. For some, a premarket approval was not considered proportionate with respect to the purpose of marketing foods that, according to the stakeholders in the Parliament, pose no risk. Food is by definition safe for human consumption or else it would not be on the market. Health claims are only additional information about a product that is safe—it doesn’t  See: European Commission (2006), recital 8, p. 2.

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change the product. It was argued that a notification procedure would be better and less cumbersome than a premarket procedure. More generally, some business actors saw the health claims regulation as a form of censorship,11 creating a climate of legal uncertainty. One of the comments of the Committee on the Internal Market and Consumer Protection (within Parliament) was: The draftsman does not believe that it should be the role of government— whether local, national or European—to take decisions as to which foods are good for consumers. (European Parliament, 2005: 80)

The draftsman in question, however, has no problem with producers suggesting what is good and bad for consumers: [I]s there any sense in preventing red wine producers from claiming that moderate quantities of red wine can be good for your heart? (Ibid.)

To the draftsman, this is no different from the many other claims within the general practice of advertising, and here he deploys an interesting argument: General claims are a common advertising tool. Most successful advertising campaigns claim that their product will—at some level—make you happier, healthier, richer or more attractive to the opposite sex. In many cases they are not intended to be taken literally and are not taken as being a genuine claim but just an advertising “puff”. Whether the “claim” is made verbally or through the use of pictures or sounds. It would clearly be ludicrous to tell sweet manufacturers that they shouldn’t display pictures of happy children either in their adverts or on their packaging, or to stop a breakfast cereal from suggesting that their cereal sends children to school ready for the day ahead. If this is allowed in advertising, why shouldn’t it be allowed on the packaging or on the in-store display? The Commission’s proposal threatens to create a state of legal uncertainty around the food advertising industry. (Ibid.: 80–81)

11  Personal Interview with the Director of a Brussels-based agency for consultancy on regulatory matters (March 2014).

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The point raised here is interesting. As advertising constantly tries to convince, seduce, and attract consumers, it could be argued that the latter are constantly being misled in one way or another. And that the consumers know it. Here is another version of the consumer: they are smart enough to know that not everything should be taken seriously, and that claims are part of the game in advertising. It is, one could say, what defines advertising as a genre in its own right. Does anyone worry about advertisements on cars and their spectacular performances in stunning landscapes? Does anyone consider whether such commercials incite drivers to behave dangerously? And even though there are debates about the influence of video games or films, would anyone take a European premarket authorization procedure seriously? Wouldn’t such an initiative be considered a form of censorship? No-one seems to trip over washing powders that remove all possible stains and make things whiter than white. Closer to the human body, does anyone trip over the exaggerations of cosmetics and their transformative effects on appearance; their magical way of making you look younger and more vibrant? Or specific claims about a component that increases the volume of your hair and making it soft as satin? These claims are not subject to a centralized premarket approval procedure, but governed through mechanisms of self-regulation and post-market control in Member States.12 Why, then, should the case be different with health claims on food, especially if all parties involved in the decisional procedure seem to agree that foods pose no particular risk to health? Why is it so different with health claims? Because they are about food? Or because they are about health? They concern both: food and health presume a body. Health claims are about ingestion and metabolism. Cosmetics concern the body as well, but in light of what we have discussed earlier in this chapter, we might speculate that the use and application of cosmetics falls within the remit of the will: a conscious and controlled intervention upon the body. Not the body acting of its own accord. But let us emphasize again that the threat of the body is not considered in terms of safety, and not in terms of public health. This was a conclusion from the Austria court case, and it has not been called into question in the legislative procedure. References to public health, nutrition policy goals, healthy diets and non-­ communicable diseases were made several times in the legislative proposal 12  https://cosmeticseurope.eu/files/4016/0015/2480/Guidelines_for_Cosmetic_ Product_Claim_Substantiation.pdf

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and the Parliamentary debates as a matter of context, but never as a direct area of intervention. In contrast, being duped by misleading information is considered the real risk: A study carried out on food shoppers in the US in 1997 showed that consumers were less likely to read the nutritional declaration when the pack was labelled with a health claim. […] Many would argue that there is a great risk that health claims are not easy to understand and utilise correctly, with the consequence that the consumer will not achieve the result(s) wanted. Thus there is a great risk that health claims will confuse and mislead the consumer and will not help the consumer choose a healthy diet, will not strengthen dietary and nutritional information and will not help promote nutrition policy goals. (European Commission, 2003: 8, point 28, my emphasis)

It is information which is at stake. The place where information is ultimately challenged is the consumer. We have seen that different figures of the consumer co-exist in law and policymaking, but what they have in common is a body. The problem that the body poses is not that it might be negatively affected by food (for food is considered safe) but that it is the counterpoint of ‘information’. It troubles the conditions that need to be united for situations of choice to be valid in a free market of rational decision-makers. Bodies cannot enter politics because they evoke the spectre of consumers who are moved by natural causes, consumers who display behaviour and not reason. The European Institutions, including EFSA, however, must assure on their side that reason and science are the rule when it comes to assessing statements on the market. While the criteria of assessment were not explicitly established in the Claims Regulation, what would science of the highest standard mean for health claims if it did not take into account the body? We will see that the body enters politics in a space conceived outside of the political arena as such. In the next chapter we will analyse how the body is made to matter and we will need to return to the boundary between health and disease; between food and drugs; and the central role of clinical trials.

References Barry, A. (2013). Material Politics: Disputes Along the Pipeline. Wiley-Blackwell. Caliskan, K., & Callon, M. (2009). Economization, Part 1: Shifting Attention from the Economy Towards Processes of Economization. Economy and Society, 38(3), 369–398.

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Caliskan, K., & Callon, M. (2010). Economization, Part 2: A Research Programme for the Study of Markets. Economy and Society, 39(1), 1–32. Callon, M., & Muniesa, F. (2005). Economic Markets as Calculative Collective Devices. Organization Studies, 26(8), 1229–1250. Callon, M., Méadel, C., & Rabeharisoa, V. (2002). The Economy of Qualities. Economy and Society, 31(2), 194–217. Cochoy, F., Deville, J., & McFall, L. (Eds.). (2017). Markets and the Art of Attachment. Routledge. Edinger, W. H. (2016). Promoting Educated Consumer Choices. Has EU Food Information Legislation Finally Matured? Journal of Consumer Policy, 39, 9–22. EFSA. (2022). Scientific Advice Related to Nutrient Profiling Fort He Development of Harmonized Mandatory Front-of-Pack Nutrition Labelling and the Setting of Nutrient Profiles for Restricting Nutrition and Health Claims on Foods. EFSA Journal, 20(4), 7259. ERNA. (2011). Nutrition and Health Claims in the EU.  A Review of the Consequences of Implementation. ERNA (European Responsible Nutrition Alliance). European Commission. (2003). Proposal for Regulation of the European Parliament and of the Council on Nutrition and Health Claims Made on Foods. COM(2003) 424 final. European Commission. (2006). Regulation (EC) No1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. OJ L 404/9. European Commission. (2020). Commission Staff Working Document. Evaluation of the Regulation (EC) No 1924/2006 on Nutrition and Health Claims Made on Foods with Regard to Nutrient Profiles and Health Claims Made on Plants and Their Preparations and of the General Regulatory Framework for Their Use in Foods. SWD(2020) 96 final. European Parliament. (2005). Report on the proposal for a regulation of the European Parliament and of the Council on nutrition and health claims made on foods. Committee on the Environment, Public Health and Food Safety. A6-0128/2005 Final. Graeber, D. (2011). Consumption. Current Anthropology, 52(4), 489–511. Health Claims Regulation. (2006). Regulation (EC) No1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. OJ L 404/9. Hendrickx, K. (2019). The Political Space Between Words and Things: Health Claims as Referential Displacement. Science as Culture, 28(4), 427–448. Hennion, A., & Méadel, C. (1989). The Artisans of Desire: The Mediation of Advertising Between Product and Consumer. Sociological Theory, 7(2), 191–209. Latour, B. (2004). Why Has Critique Run Out of Steam? From Matters of Fact to Matters of Concern. Critical Inquiry, 30, 225–248.

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Laurent, B. (2022). European Objects. The Troubled Dreams of Harmonization. Harvard University Press. Laurent, B., & Mallard, A. (2020). Labelling the Economy. Qualities and Values in Contemporary Markets. Palgrave Macmillan. Majone, G. (2000). The Credibility Crisis of Community Regulation. Journal of Common Market Studies, 38(2), 273–302. Meisterernst. (2013). A New Benchmark for Misleading Advertising. European Food and Feed Law Review, 2, 91–96. Mol, A. (2008). The Logic of Care. Health and the Problem of Patient Choice. Routledge. Nestlé, S. A. (2009). The Nestlé Nutrient Profiling System. Nestec Ltd. Sanabria, E., & Yates-Doerr, E. (2015). Alimentary Uncertainties: From Contested Evidence to Policy. BioSocieties, 10(2), 117–124. Tetens, I., Oberdörfer, R., Madsen, C., & de Vries, J. (2007). Nutritional Characterisation of Foods: Science-Based Approach to Nutrient Profiling. Summary Report of an ILSI Europe Workshop Held in April 2006. European Journal of Nutrition, 46(Suppl. 2), 4–14. Valverde, M. (1997). ‘Slavery from Within’: The Invention of Alcoholism and the Question of Free Will. Social History, 22(3), 251–268. Verhagen, H., & van den Berg, H. (2008). A Simple Visual Model to Compare Existing Nutrient Profiling Schemes. Food and Nutrition Research, 52.

CHAPTER 6

Bodies of Evidence

Fast forward. It is March 2012 and we are at a conference at the Royal Netherlands Academy for Arts and Sciences (hereafter: Royal Academy). In his opening address, the conference Chair says that research in nutrition has two faces: Ladies and Gentlemen, research on nutrition has two faces. You could call it Dr. Jekyll and Mr. Hyde: on the one hand, if you talk about food patterns, then most nutritionists will agree that a nutritious diet will be good for health. But on the moment that you move to individual food(s), the situation is euh, completely euh … different. (Conference Chair, my transcription)

From his hesitation in characterizing how scientists deal with individual foods, we might deduce that they are the Mr. Hyde side of things. The title of the conference and the shared concern of the scientists gathered is: what is scientific evidence for nutrition and health claims? Isn’t that a strange question, five years after the Claims Regulation came into force (Health Claims Regulation, 2006)? Hadn’t EFSA been charged with the mission of evaluating health claims according to generally accepted evidence? EFSA had indeed taken five years to evaluate more than 4000 claims and had rejected about 80% of health claims submitted. The high rate of rejections was of course the reason for organizing this conference. But before we move to the actual content of the debates at the Royal © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 K. Hendrickx, Health Without Bodies, Health, Technology and Society, https://doi.org/10.1007/978-981-99-4950-2_6

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Academy in the next chapter, we first need to understand what happened right before: the years that EFSA started assessing health claims when the Claims Regulation entered into force.

EFSA Putting Claims to the Test Putting into practice the procedures of the Claims Regulation, thousands of claims submitted to the EFSA were reduced and regrouped into 4637 claims. Between roughly 2007 and 2011, opinions on groups of related claims were periodically released in batches. By 2012, a Community List of 222 approved general function claims was published on the basis of these evaluations. The function claim makes no reference to disease, but to the support of, contribution to, or maintenance of ‘normal’ bodily functions (which are supposed to jeopardize health when not functioning normally). Examples are: ‘Biotin contributes to normal functioning of the nervous system’; ‘Beta-glucans contribute to the maintenance of normal blood cholesterol levels’; ‘Calcium contributes to normal muscle function’. This Community List, consultable online, is valid for the EU, and food companies can use these claims if the conditions of use are respected, such as the amounts of the beneficial nutrient that the overall product must contain and the number of servings of the product necessary for the claimed effect. This information must also be added on the food label. If the food company respects these conditions, then it need not go through an individual evaluation procedure, as the Article 13.1 function claims are considered generic. The large majority of approved claims concern vitamins and minerals, the characterization and properties of which are considered well established. Risk reduction claims turned out to be more complicated, and many were rejected. Even though the Claims Regulation stipulated that a pre-market scientific assessment procedure by EFSA would be established, it was by no means clear which scientific criteria were going to be used. As we have seen in Chap. 3, industry think tanks and lobby groups such as ILSI Europe had prepared the way for an ‘evidence-­based nutrition science’ based on risk factors, biomarkers, and a meta-science of aggregated data through statistical correlations (Aggett, 2009; Biesalski et al., 2011). Evidence-based nutrition was geared to avoid all reference to the clinical, and indeed the human body itself. Keeping away from what I call the ‘clinical body’ meant avoiding confusion with drugs and its regime of pre-market approval based on costly and labour-­ intensive clinical trials. When EFSA made clear that it wanted clinical

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evidence (EFSA, 2011, 2017), the clinical body made an unexpected, and for many unwelcome, return. This turned out especially problematic for risk reduction claims. First there is the question of which bodily state counts as a disease. For example, specific probiotic studies on the prevention of traveller’s diarrhoea have been rejected by the EFSA for a variety of reasons, including insufficient statistical description and high drop-out rates of trial subjects (EFSA, 2009). An interesting reason for EFSA’s opinion, with respect to the distinction between health and disease, is that preventing diarrhoea is not in itself accepted as a clinical endpoint. The EFSA considers diarrhoea as a disease, implying that a risk reduction factor must be identified and validated if the claim is to be approved. The risk reduction factor stands as a buffer between the food and the disease, a buffer between the markets of food and drugs. EFSA’s many rejections spurred reactions from different angles, questioning EFSA’s scientific method of assessment, and even its expertise altogether. For example, NutraIngredients, a business newsletter for the health foods and ingredients sector, resumed the state of affairs mid-2011 like this: The Parma-based agency is no doubt slapping itself on the back for completing an exhaustive and gargantuan task, but industry and academia would prefer slapping the face of EFSA’s health claim panelists who have for the best part of three years relentlessly rejected so much nutrition science. (Starling, 2011)

The title of this article was ‘EU Researchers Revolted as EFSA Clears Health Claims Vault’. This title opposes researchers to EFSA, though EFSA’s panellists are, by profession, researchers too. The expression ‘clearing a vault’ then suggests that EFSA’s Nutrition panel had not done a very delicate job, but more of a general sweep-up in a storage room, throwing away things without much consideration.1 The last phrase goes in the same direction: EFSA has ‘relentlessly rejected so much nutrition science’. What does this mean? Isn’t EFSA’s Nutrition panel composed of experts in the field of nutrition science?

 The full name of the panel is the Panel on Nutrition, Novel Foods and Food Allergens.

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Nutrition’s Lost Alliance Different scene. A small conference was organized at the University of Liège in Belgium, entitled ‘Should we believe in the virtues of probiotics?’. The invited expert was a microbiologist and Research Director at the Pasteur Institute in Lille, France. Considering that modern science has always defined itself in opposition to opinion and belief, it is rather curious that a scientist is asking whether we ‘should believe’ in probiotics or not. Probiotics is a term used for bacterial strains with supposed beneficial effects for human health, or for a product containing such bacteria like certain brands of yoghurt. The invited professor was particularly worried about the fact that EFSA’s Nutrition panel had not approved a single probiotic claim at that time. He said that 300 applications to EFSA, representing ‘hundreds of millions of euros’ in health research have been ‘thrown in the dustbin’.2 As a consequence, according to the professor, scientists find themselves ‘at a loss’ as to how they should orient their research in the future. This is a remarkable statement: what kind of scientist is lost after a regulatory agency dismissed a particular type of claim? What is the kind of ‘fact’ that this scientist depends upon for her or his practice to exist? This poses the question of what Isabelle Stengers (2023) calls the milieu or ecology of the sciences. Speaking in terms of ecology implies that knowledge practices are situated within a dynamic play of forces that involves public authorities, universities, industry, the army, and other instances. It also implies that certain types of knowledge will be valued over others and might be pursued at the expense of others. Nutrition science emerged in nineteenth-century Western Europe alongside the rise of the nation-state. Nutrition science was a product of this new political entity—the state—that defined health and fitness according to what enables citizens to do physical labour, produce goods, and go to war (Kamminga & Cunningham, 1995). For citizens to be fully functional in 2  My translations and paraphrases in this section are based on my notes of the Professor’s talk and the following abstract of his presentation: […] 300 dossiers qui représentent plusieurs centaines de millions d’euros ont été jetés à la poubelle…Un débat de fond semble aujourd’hui nécessaire. Celui-ci concerne à la fois les producteurs qui ont perdu leurs investissements en “recherche” santé, les scientifiques qui ne savent plus comment orienter leurs recherches, mais aussi et surtout les consommateurs qui n’ont plus aucun moyen pour faire la distinction entre les produits sérieux et les produits “cowboy” présents sur le marché: cela au risque de perdre des bénéfices importants pour leur santé! The Professor expressed the same concerns in an interview with the business magazine NutraIngredients, which is available at: http://www.nutraingredients.com/Regulation/ Valio-EFSA-ignored-peer-reviewed-data-in-probiotic-claim-rejection

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their capacity as labourers, producers, and fighters, states started promoting nutrition research, organizing dietary education campaigns (aimed mostly at housewives) and intervening in the provision of school meals, hospital diets, and the production of food supplements (Ibid.). This ecology favoured alliances between science and industry, to which Justus von Liebig’s Extract of Meat still bears witness today. Liebig’s dried meat extract was a technoscientific invention, conceived for wartime purposes, when soldiers needed a source of energy (‘muscle power’ derived from animals) that was non-perishable and easy to transport (Finlay, 1995). The little cubes that we use to spice up soups and sauces are not only concentrated flavour, but condensed geo- and biopolitics. While the meat extract has been shown to have little nutritious value, Liebig’s approach to nutrition science and commerce was privileged over other approaches. In the nineteenth century, another influential approach to food and nutrition science was championed by the Dutch scientist Jacob Moleschott. He conceived of nutrition science as a science for the people—a political and materialist philosophy about well-being that related nutrition to political freedom and human dignity (Kamminga, 1995). The fact that Liebig made it to all history books has more to do with how he was able to position himself in the ecology of the time than with the intrinsic value of his nutrition science, many concepts of which have been proven invalid over time. An ecology or milieu of knowledge practices is not eternally stable, and this means that knowledge practices and relations of power and interest are always at stake, rather than given. From this perspective, the figure of the scientist who is ‘at a loss’ becomes more than mere rhetoric, because it indicates a sense of ecological transformation: a serious complication in nutrition science’s historical alliance with the State. Commercial applications of probiotics, derived from fundamental research at places like the Pasteur Institute, are not taken for granted by the new European agency of experts—the EFSA—in Parma, Italy. With all probiotic health claims rejected, said the professor from the Pasteur Institute, food producers will be discouraged from innovating; scientists are lost; and consumers will fall prey to what the professor termed as ‘cowboys’ making claims without backing up their evidence with serious science. This, the professor added, will make consumers ‘miss out on health benefits’. Public health itself, it would seem, is at stake here. With the figure of the scientist who is at a loss, what is being deplored is the loss of a partnership and mutual trust between science, industry, and the State for a version of public health that is defined by that partnership. ‘Should we believe in the virtues of

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probiotics?’ We can now better understand why a scientist speaks in terms of belief: betrayed by a century-old ally, is there still reason to believe that probiotics are going to ‘work’ within the given constellation of research, politics, and forms of evidence? The question what it means for a substance to ‘work’ is central to this chapter: it concerns not only the agency of the substance but also the mode of socialization of the substance in a stratagem of evidence. We will very soon turn to this question, but a final consideration is in order about something the professor at the Pasteur Institute said towards the end of his talk at the University of Liège. By way of a positive note, despite all the bad news concerning EFSA’s negative assessments, the professor made explicit reference to ILSI’s probiotic task force and its latest publications, saying that organizations like ILSI are ‘on it’ and are making progress in the matter. This statement, again, concerns the alliances in an ecology of scientific evidence. In the late 1990s, the ILSI corporate lobbying group had tried to anticipate the creation of EFSA as an ecological transformation by insisting on the role of functional foods to public health in Liebig’s tradition. With the FUFOSE and PASSCLAIM documents, ILSI tried to renew the partnership with the State by proposing a unified functional foods concept ‘for Europe’ along with criteria to evaluate claims according to what ILSI considers sound science. In addition, our professor pointed to a common enemy: the cowboys on the food market making unsubstantiated claims. You can hear the echo of modern medicine chasing out the ‘charlatans’ (Nathan & Stengers, 2004). The state, scientists, and the more virtuous business operators should envisage a common mission. Only then can sound nutrition science be recognized, and only then is there a stage of arbitrage. But isn’t this precisely what the European authorities asked EFSA to do: acting as a scientific arbiter to protect both the market and the consumer? EFSA’s adherents say the agency uses science to prevent the circulation of false or misleading health claims from entering the European market. For example, nutrition scientist Martijn Katan, who also has a regular column in Dutch newspapers, concluded a short piece on health claims in the EU as follows: If science remains the standard, then a lot of stuff will disappear from the shelves of your local drugstore. This is unfortunate for the producers,

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because the profit margins on those little bottles are very interesting. But the consumer is better served by supplements that really help.3

The term ‘science’ comes to stand in the way of our analysis. Our professor from the Pasteur Institute feels that so much good science is being thrown in the dustbin, and here is another professor who says that most of these ‘little bottles’ belong precisely in that dustbin if ‘science remains the standard’. And, of course, it has not escaped the reader’s attention that probiotics are sold in little bottles. How can there be such disagreement on scientific standards of evidence? When it comes to pharmaceuticals, the randomized clinical trial became the gold standard shortly after the Second World War, so do we not have all the know-how by now to test whether food ingredients can achieve what is claimed about them?

Regulatory Science and Evidence The majority of health claims were being rejected by EFSA, and various researchers in academia and industry felt that this was unjustified, as they considered that their dossiers were firmly backed up by scientific evidence. EFSA, on the other hand, pointed to the flaws in the dossiers, the insufficient characterization of substances, bad statistics, and other problems.4 I have attended several symposia where terms as ‘good science’ and ‘sound science’ were being opposed to ‘bad science’ and ‘old science’. And these terms travelled in opposite directions: different parties were accused of pertaining to bad or old science, and all parties self-proclaimed their adherence to ‘sound science’. With so much emphasis on ‘science’, it is clear that some suspicion is in order. In fact, fundamental researchers say the opposite: there is never enough evidence, there are many unknowns, and more research is needed. But you will not hear them say that their work needs to be scientific. As we have seen in Chap. 3, the insistence on science means that we are in a different kind of practice. The evaluation of health claims is driven by a political need to decide. The vital importance of ‘being scientific’ needs to be understood in opposition to being corrupted. The criteria for evaluation must be impartial, robust, and designed by convention so as not to undermine trust in the experts assigned for the task. Regulatory science is not about being systematically hesitant with 3 4

 Press article of 2009, reproduced on Katan’s website. Original publication not specified.  Interview with a former vice-chair of the EFSA Nutrition panel.

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your objects, allowing them to change your research questions or problem definitions. It is about judging existing studies and convening on an overall conclusion. This is how a former Chairman of EFSA’s Nutrition panel put it: I think the challenge comes when you’re called upon to make a scientific judgment. So when you put the data together from many different studies, […] and you put that evidence together in totality, and you then say: what does the evidence in totality show? So you might have studies showing one thing, and you might have contradictory studies, showing something different, you know. And now you have to weigh the evidence. And so you have to make a judgment on what you think is the truth, because the evidence may point sometimes in different directions. And I think that is the most critical part: it’s when you have to weigh the evidence to come to an overall conclusion. And that’s where you can get different opinions, because people might give different weight to different data. And depending on their own expertise and background they may give extra weight to some types of studies. Now that’s really the most challenging part I think. (personal interview, my emphasis)

The EFSA panel doesn’t directly put a molecule or nutrient to the test, but it evaluates the different ways in which a molecule or nutrient has been put to the test by others. The panellists all have a scientific background and their discussions have scientific content, but they essentially evaluate the rules, protocols, and setups of trials, and the trustworthiness of evidence and sources. In their advisory role to the Commission, they perform a judicial or regulatory task: their mission is to implement European legislation on health claims. The specificity of the panel’s work becomes clear in the next citation of the same Chairman: I find, and I have experience in chairing this panel and other committees for some years, you can get scientists to look at the evidence and to agree on a draft which describes all the data. And where you find the scientists hesitate is when you say: ok, we’ve discussed the data for hours and hours and hours, we’ve got the draft, what do we conclude? And this is where experts will always stand back and say: I'm not sure. And the first reaction you will get from an expert [starts laughing] … is …. “we need more data” (laughs out loud). And that is the freedom that a researcher in academia always has: "we have discovered this, but we can’t conclude, we need more data”. But, in the area of scientific advice, you cannot conclude that way. You have to make a conclusion with the data you have. And this is the big challenge for

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these expert committees: with the data here in front of us today, what is our conclusion? Because the BIG fear, the big fear of experts, and this is [starts laughing while emphasizing] BASIC fear … . They’re afraid they might draw the wrong conclusion. (Ibid., my emphasis)

The scientists of his panel hesitate, and the Chairman has to channel these hesitations towards a conclusion. He recalls them that they must behave as scientific advisors and not as academic researchers while in the panel. He must recall them what their role is. The work of scientific advisory committees has been analysed by some with the help of the theatre metaphor (Bijker et al., 2009), inspired by the work of Erving Goffman (1959). This metaphor is only useful if it helps reminding us that taking up a role is not self-evident: not for scientists and not for actors on stage either! The Chairman’s insistence on fear is remarkable, all the more because many of these experts already have experience with ‘being an expert’. Experts have specific career paths in which they switch and cumulate mandates (Demortain, 2011; Granjou et al., 2013). The fear that the Chairman mentions, is important because it points to the fact that scientists have difficulties with their attachment to different practices: judging versus knowledge production. This is the transformation that the ‘playing’ of different roles requires from them: a change of practice. If the often-­ used theatre metaphor is to be of any use, then we need another version of it that insists on the transformation that is required of those who play the roles, instead of a metaphor that underestimates this change and focuses on a switch in communication strategies between backstage work and frontstage (public) presentation. The Chairman’s interventions are there to induce the necessary transformation: to temporarily have the scientists accept the constraints of a political, legal, and commercial environment. These constraints create an entirely original category, which is often presumed to exist before hand: ‘the data available’. The imperative to form a judgement creates the category of ‘available data’, and not the other way round, because, as the citation indicates, academic scientists have the freedom of not accepting the category of ‘available data’. They say: ‘we need more data!’ EFSA has been created to make the category of ‘available data’ exist. For the Nutrition panel, the portfolios are a first proto-structure of a possible claim as they make data comparable. The exercise of comparison and judgement, which the Chairman must help channelling out of hesitation, stabilizes what are called, after the fact, ‘available data’ or evidence. As

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an original category, evidence generates a space of mobilization of its own and, as I will argue more fully in the next chapter (Chap. 7), a morality of its own. EFSA’s critics seize every opportunity to point out precisely what EFSA is doing—evaluating dossiers—as opposed to the real innovative science that is supposedly happening in nutrition labs and corporate R&D departments. But both camps are really competing over evaluation criteria, and the word ‘science’ is used to defend one’s own approach and discredit the other. Neither ILSI’s claim technicians nor EFSA’s evaluators are doing science in the sense that they expose themselves to the risk of having their research questions transformed by the object they study. What is at stake in the tensions between claim technicians and evaluators are the criteria that allow one to stop asking questions and judge. And the main point of contention is this: in its exercise of weighing the available data or evidence, EFSA gives most weight to clinical trials and to randomized clinical trials (RCTs) in particular. EFSA is accused of using pharmaceutical evaluation criteria. The RCT is indeed a very particular kind of trial. Drugs go through a particular process of socialization, with a market of their own. That process and that market, many fear, may be unfriendly to food business and nutritional concepts. Let us look closer into that process.

Socializing Molecules What does it mean for a substance to ‘work’, or to have an effect? In Qu’est-ce qu’un médicament, historian Philippe Pignarre (1997) explains that a ‘modern drug’, sold in the pharmacy in exchange for a doctor’s prescription, comes into existence in a very peculiar way, through a particular mode of socialization. Shortly after the Second World War, the placebo controlled double-blind test, or randomized controlled trial (RCT), became the standard method to test the efficacy of drugs (Marks, 2009). Differently put: the RCT puts the candidate molecule to the test. The RCT proposes a series of steps to make the molecule enter the world of human organisms. When a molecule engages into interactions with the human body it becomes socialized. The specificity then, of the modern drug, is that the final step of the socialization process consists of a comparison between a group where the molecule is tested and a group without that molecule in order to measure the placebo effect. Without this comparison, we would have no reason to attribute the cause of recovery in a trial to the molecule only, because the placebo effect often interferes.

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Pignarre explains that, in the end, the comparison with the control group doesn’t allow to attribute the recoveries in the test group to the molecule only either. But what matters is the statistical difference between control and test group. Drug developers just need to know whether the drug is safe and whether the percentage of recovery is higher with the drug than without it. There is no reason to assume that all the unknown factors in the placebo group would be ‘on hold’ in the test group. It is just that a statistical difference must be shown between test and control group in order to say that the drug ‘works’. So rather than subtracting spontaneous recovery mechanisms from the test group by placing them in the ‘placebo’ or control group, what is actually done is adding the molecule to the bodies in the test group, where there is no reason to believe that the ‘placebo effect’ is put ‘on hold’ because of the molecule. The nuance is important, because it emphasizes the complexity and unpredictability of the body, not to mention how that interacts with the mind. In Western biomedicine, the molecule is what counts as a valid cause. Phenomena of recovery are fully acknowledged in the placebo control group—which is the very reason why it is used as a comparison at the heart of the RCT—but here people recover, as Isabelle Stengers nicely puts it, ‘for the wrong reasons’ (Stengers, 2023). If the test group in an RCT shows a higher percentage of recovery than the control group, then the drug obviously works in some way. But again, all mechanisms involved in the healing process are never known, and the RCT has not been designed to discover these mechanisms. That is why the RCT is also form of regulatory science rather than fundamental research. This does not mean that the test is not demanding or not rigorous, on the contrary: human participants are carefully selected and subjected to a controlled diet and to criteria of compliance. But this kind of rigour also poses particular problems. Sociologists, anthropologists of medicine, and patient activists have analysed and criticized RCT’s criteria of inclusion and exclusion, along with the outsourcing of participant labour to raise questions about the kinds of bodies that are mobilized to prove efficacy—the common socialization of bodies and molecules (Epstein, 1996; Petryna, 2009). The difference with other types of knowledge practices lies not in rigour as such, but in the types of questions that are asked, the bodies that are mobilized, and the answers that are obtained from the test. It is the procedural nature that distinguishes the RCT from hypothesis-driven experimental research. There is a lot at stake in the ways the procedure is set by selecting participants and establishing their regime of compliance. The procedure allows posing the

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question: ‘does the drug work or not?’ And the possible answers are limited to either ‘yes’ or ‘no’. This omits the socialization work that contributes to the drug’s working. Socialization implies the participants, for sure, but the molecule itself too. Referring to the work of Deleuze and Guattari, Pignarre sees the RCT as an axiomatique, defining itself and its environment; a middle ground preformatting what enters the test and sanctioning what leaves. Preformatting refers to the tests that a molecule goes through before being put to trial in the RCT. Pignarre calls this ‘the molecule’s learning process’. After tissue tests, the molecule is gradually ‘accustomed’ to interacting with living beings, seeking out those that have a certain predictive value for later tests on humans. In other words, the requirements of the RCT are moved upstream, defining the sort of animals, such as rats and mice, required as laboratory elements in experiments designed to make statements possible about a molecule’s agency in laboratory conditions. So what about food ingredients? If a molecule, say oligofructose, is said to enhance immune function, then EFSA’s Nutrition Panel wants to see studies that show clinical outcomes in human study groups. This is precisely the route that ILSI’s claim technicians wanted to avoid (see Chap. 3). EFSA considers that animal studies may provide additional information, but no health claim can be allowed if the clinical effects have not been proven in a human population. We might expect oligofructose to be simply tested for its efficacy on immune function, Calcium absorption, decreasing of pathogens in the gut flora -or whatever claim- and that would be it. But this is where the problems begin. In fact, the socialization of the molecule, or the resocialization in the case of an existing food ingredient, through interaction with the human body, cannot occur under the same terms as in the RCT for drug testing. The molecule is forbidden by law to show preventive or curative effects with respect to symptoms of disease. The only option is to show that healthy people become healthier. Further below, we will discuss the issue of what a ‘healthy population’ means in terms of trial participants. But first, let us imagine that food were allowed to cure, treat, or prevent disease. If food could be shown to be effective in that sense, then the molecule would switch status and become a drug. And in certain circumstances, such as cases of metabolic diseases, certain food ingredients indeed show therapeutic capacity and are used for treatment in hospitals (Hendrickx and Dooms, 2021). But in that case, they are no longer food, and that is the catch. The consequences of that are problematic for the food industry. Drugs and disease are not their

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business. They would have to operate under a different legislation and different technical requirements. They would have to operate in a market that is not theirs, and at higher production costs. Disease, moreover, is not something that food companies want to associate their products with, as health claims emerged at a time when certain ingredients or products, like sugar and butter, were criticized because of their possible contribution to certain diseases. Food should be enjoyment; food should be positive. The importance of all these consequences shows how much the RCT is indeed ‘axiomatic’ and part of an entire agencement making drugs to what they are.5 An agencement can be explained as a dynamic of imbricated things affecting one another, a play of forces that cannot be dismembered.6 If one connection is broken in the molecule’s socialization process with human bodies, then it will never become a drug. If everything holds together, and a significant effect is demonstrated, then the molecule becomes a drug. With this agencement in place, it can be said that drugs have their own territory in a sense that is more than geographical, and close to how Deleuze and Guattari (1987) use that term. Territory is more than geographical, as it ties distribution and circulation in space to transformative social relationships. Deleuze and Guattari use the terms de- and reterritorialization, as processes, more often than territory itself. This is because their philosophy is one of processes and becoming. For Deleuze and Guattari, ‘becoming’ (devenir) does not simply mean that, for example, an organism changes and develops through time. They use the term to conceptualize how the becoming of an organism depends on other becomings that may deviate or inflect the trajectory of the organism. Such inflection within a mutually transformative relation is what they call deterritorialization. The clearest example they give is that of the encounter between wasp and orchid. Attracted by the wasp genitals mimicked by the morphology of the flower, the wasp is enlisted in the flower’s reproductive cycle, while the wasp finds food in the flower. The encounter changes their respective trajectories both in space and in becoming. Each one of them finds itself deterritorialized and together they become different in their encounter. 5  I use the French term ‘agencement’, rather than the English translation assemblage, for the same reasons put forward by Callon (2007) and Despret (2013): it better conveys the agency (agence-ment) and dynamic play of forces, as originally proposed by Deleuze. See: Deleuze and Parnet (1996). 6  For a clear description of what an agencement is, as a form of agency, with many examples, see Despret (2013).

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We could say that the human body, as an organism, is also a process of becoming, not only in time but also through biological encounter and transformation. Metabolism is where the body constitutes itself and ‘becomes’ different through something else, however slightly, however slowly. Ingestion may be a pathway for deterritorializing the body: the ingestion of concentrated molecules like drugs can clearly create a new situation—a new trajectory for the molecule and the body respectively. Clinical trials, in that sense, can be seen as an attempt to orchestrate such deterritorialization, with the aim of standardizing that process into a system of variables, controls, and coordinates: a reterritorialization, or what I have called, following Pignarre, socialization. Again, de- and reterritorialization concern the directions and inflections of trajectories of becoming, and the example of the orchid and the wasp suggests that deterritorialization is a form of socialization too: a transformative social encounter. What is at stake in the socialization of drugs and food ingredients in clinical trials are the ways to control and contain a body that is unruly (as with the placebo effect) and unpredictable. While the principles of RCTs and their practical organization can and must be criticized for a variety of reasons (outsourcing to poor countries where people enrol in tests to earn some money; use of the male body as a standard, etc.), what makes them interesting here is the contrast they pose to the plans of ILSI and the wider community of nutrition scientists who did everything they could to avoid them. RCTs are geared, by design, to confront the risk of a clinical encounter, however biased and problematic the orchestration of that encounter often is. The body, in principle, has the final word. Food companies want to occupy the territory where the pharmaceutical industry seems to have reached a limit of intervention (Pignarre, 2004):7 non-communicable chronic diseases such as diabetes, cardiovascular diseases, cancer, and problems related to ageing such as osteoporosis and antibiotics-related gut infections. But as the modern drug is defined and impossible to dismember from its agencement of production, then functional foods, if they ever want to occupy a new territory of ‘health’, must have their own agencement including premarket tests. This is what FUFOSE and PASSCLAIM were all about, in anticipation of a European 7  I refer again to Pignarre, explaining in his 2004 book on the pharmaceutical industry, why innovation has stifled. Western pharmaceutics specialized in treating infectious diseases. Many drugs were protected by patents, but when these rights expired, innovation became more costly, especially because the causes of morbidity have changed in the Western world.

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Regulation for health claims. And, indeed, the creation of a European agency for food safety was already being discussed in the wake of several food crises in the late 1990s, when ILSI’s FUFOSE project was running. We can now better appreciate why the project was called ‘functional food science for Europe’. This was not only because the project had received funding from the Commission’s Directorate General for Research, but also because food companies wanted to create a European market and territory for functional foods. And, even though nutrition research is not a new discipline, everything had to be invented, and existing research translated—to make a first claim (in the sense of claiming one’s right) to health. Everything had to be invented at the same time to try and make it hold together like an agencement as powerful as that of drugs: the object (functional food), the ‘science’ (in terms of functional components and target body functions), the premarket test (with a privileged role for biomarkers), and the experts. In the years following the Regulation on health claims, EFSA brought back what projects like FUFOSE and PASSCLAIM wanted to exclude as much as possible: the body in its clinical version; the body showing observable clinical changes. EFSA was accused of applying the criteria of evidence-­ based medicine to an object of study and a type of expertise that needed assessment criteria of its own.

The Clinical Body and Evidence-Based Medicine After the Second World War, when the RCT became common practice for putting drugs on the market in all Western countries, it also became the main reference or the ‘gold standard’ for what was to be called evidence-­ based medicine from the 1990s onwards.8 Evidence-based medicine (EBM) systematically reviews international data from clinical trials. Through statistical calculations, different RCTs and other clinical trials for a same treatment are put together to assess the efficacy of that treatment. EBM hierarchizes different sources of evidence and the RCT is placed at the top. Critical questions were raised soon after the generalization of 8  See Timmermans and Berg (2003). The RCT was initially met with resistance from the pharmaceutical industry, but later on this trial became its strength, allowing it to become a full-fledged capitalist enterprise based on serial mass production, see Pignarre (2004). For a genealogical type of history of EBM and its relation to professionalism, see Armstrong (2007); on the relation with medical authority see Denny (1999). A short history of the EBM movement is also given by Marks (2009).

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EBM, concerning EBM’s consequences for the medical profession, both by medical practitioners and scholars.9 Criticism also comes from practitioners in alternative and complementary medicine, because EBM assesses very different kinds of therapy (such as homeopathy or osteopathy) and different approaches to illness and disease according to one single evaluation scheme—a scheme designed to assess the efficacy of pharmaceutical compounds.10 Chapter 3 already indicated that claim technicians defended a discipline proper. In the wake of EFSA’s evaluations between 2007 and the following years, they re-baptized the movement of functional food science as: Evidence-based Nutrition. What is at stake for the food industry is this: if claim technicians want to relate food components to human health, they must look for ways to socialize these components without them losing their identity as food components. EFSA asks for dossiers with a description of the active component; its claimed effect on human health (EFSA also evaluates the proposed wording for the claim); and why this should be a benefit; and evidence for a causal relation between the component and the benefit (EFSA, 2007, 2011, 2017). Like in EBM, EFSA puts RCTs at the top of a pyramid of proof. In Chap. 3, I discussed how claim technicians proposed to rank RCTs among other studies, rather than on top of them, and their reasons for doing so: such studies are very costly, time-consuming, and not the area of expertise of food companies.

Ways Around the Drug Trial Dear Mr. Barroso, We kindly ask your attention for a difficult matter: In 2006 the European Commission has adopted a law requiring health claims made on foods to be approved prior to their use. […] As scientists in gut research, we have followed these developments with great interest and have observed with 9  See, for example, Timmermans and Kolker (2004). They argue that medical knowledge has been reconfigured through a shift from pathophysiology to epidemiology, through the creation of practice guidelines, and the effects of these guidelines on the autonomy of health professionals. See also Timmermans and Oh (2010) for the role of EBM in the transformation of the medical profession. Sinclair (2004) considers the changes EBM has induced in medical teaching, where published papers have largely become the main source of pedagogic illustration instead of patients. 10  For the implications on the profession of the chiropractic, see Villaneuva-Russell (2005); for a critique of EBM in alternative medicine, see: Barry (2005). A general philosophic and critical discussion of EBM is provided by Goldenberg (2006).

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increasing worry the outcome of these assessments and their consequences for our field of expertise: To date, we have not seen a single positive pro- or prebiotic claim accepted by EFSA, despite the large convincing and generally accepted body of scientific data available. […] At a stakeholders meeting organized by EFSA on 2 December 2010 in Amsterdam on this topic, we have tried to obtain further information on the underlying reasons for these rejections. The outcome of the meeting was unsettling: the way the claims requirements are formulated and applied is making it virtually impossible for the benefits of pre- and probiotics to be recognized. One of the major obstacles is the regulatory ban on clinical endpoints. A striking example is that in case of studies on prevention of traveller’s diarrhoea, diarrhoea itself is not accepted as an endpoint but validated biomarkers and risk reduction factors are required. (Petition on the website www.gut-­health.eu)

This is an extract of a petition addressed to the 11th President of the European Commission and signed by 192 scientists from more than 20 different -mostly European- countries. The petition was to be found on a website called gut health—website for basic and clinical gut scientists which is no longer online. The homepage showed a picture of Elie Metchnikoff, an early twentieth-century scientist, in front of a microscope and taking notes. Different things can be learned from this extract. The writer speaks on behalf of scientists in gut research and they are worried. They feel that their field of expertise is being threatened. This field encompasses not only ‘gut research’, but also a specific sort of product and technology, designed to try and alter the gut microflora: pre- and probiotics. By putting a photo of Metchnikoff on their homepage, they position themselves as the heirs of this early twentieth-century scientist: they inscribe themselves in a history starting from fermented milk in Bulgaria that Metchnikoff researched, to the development of a branded product in the 1930s in Japan, and to Yakult and other products in Europe today. This would imply that if EFSA doesn’t allow any pre- or probiotic claims, and rejects the science behind it, the agency is actually throwing away a century-old knowledge of the influence of bacteria on the human gut microflora and human health. And, as the gut researchers add in the same letter to Barrosso, ‘we feel that this is not benefiting public health’. In their collaboration with industry, these scientists feel frustrated that the development of certain products is compromised. As ‘scientists in gut research’, they feel that their identity is threatened, and they feel offended that the benefits of their science and products are not recognized. It is interesting to note that ‘gut health’ and

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‘gut science’ are rather new terms, and the website had been called into existence because of the problems with EFSA. This means that a group of scientists within the larger community of the life sciences gathered around a certain product, technology, and science to forge an identity. The issue at stake has to do with putting molecules (for prebiotics) and bacteria (for probiotics) to the test. As the gut scientists argue in the letter: ‘One of the major obstacles is the regulatory ban on clinical endpoints’. This is not entirely correct. Clinical endpoints are actually required by EFSA, but they must not be related to disease symptoms. Indeed, the disappearance of diarrhoea is not accepted by EFSA as a clinical endpoint. If a substance can alleviate diarrhoea, then it is no longer a food but a drug. Enterol, for instance, is a probiotic drug. Yakult, anno 2012, is—according to this definition—only a yoghurt. But EFSA is not necessarily hostile towards health claims. From the conversations I had with the former Chairman and Vice-­ Chairman of the Nutrition panel, I learned that they are genuinely interested to see if probiotics work when inserted in ‘normal’ doses in a food matrix. ‘But you need a healthy population to put your bacteria or molecules to the test, as you’re not allowed to make statements about disease and symptom relief’.11 One option that is explored by functional food adherents are challenge tests: inoculating a virus for instance, without making people sick, but to see if immune parameters react more efficiently under a pre/probiotics regime (see e.g. Biesalski et  al. 2011). But it is feared that this would cause ethical problems, and raise questions similar to those raised around vaccination. Extrapolation would be another way to get round the problem of the disease endpoints. In this case, RCTs are performed on a population with disease symptoms, and if more is known about the exact mechanisms of the product’s action, then extrapolation to a ‘healthy’ or ‘normal’ population would be an option, depending on the case and the strength of the evidence. Specialized research and development labs have designed yet another solution to be able to perform RCTs: borderline populations. These are people that are in a ‘suboptimal’ state of health. For example, a trial participants with a body mass index between 25 and 35 kg/m3 are considered neither obese nor ‘normal’. With such a group, ingredients, claimed to regulate a person’s appetite, can be tested for weight management products. Similar setups can be designed to test a molecule’s agency on a population with ‘suboptimal’ cholesterol levels, and to relate this agency to the reduction of risk factors for cardiovascular  Personal interview.

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diseases. Throughout all of these potential test solutions, the active agent (a nutrient, a molecule, a bacterium) remains unchanged. It is the environment (the trial, the population, etc.) that must adapt to the molecule or bacterial strain. Concomitantly, with the concept of suboptimal health, the boundary between health and disease is not blurred but displaced. Although EFSA is accused of applying EBM criteria, they assume different endpoints than EBM.  Clinical trial expert Joerg Gruenwald, a much-invited keynote at health claims conferences, and president of the private lab Analyse & Realize says that: You need at least one good clinical trial, randomized placebo controlled, which is in the population that is 'accepted' by EFSA. It doesn't have to be totally healthy, but it has to be accepted, and there are all these borderline cases where they say: ok this is still a reflection of the general population.12

Claim technicians search for ways to comply to what EFSA wants by working on classification margins.

The Indexed Body and Evidence-Based Nutrition There is, however, a community of industrial and academic scientists that do not agree with EFSA’s evaluation criteria at all, claiming that they are unsuitable for a ‘true science’ of nutrition: Research in the field of nutrition has entered a new stage, where it deserves its own nutritional methodologies that are distinct and more diverse than evidence- based medicine. It requires redefining health in terms of an individual’s potential to adapt to internal and external stimuli rather than using the pharmaceutical paradigm. Any claims assessment system that is not able to accommodate the wide spectrum of health effects should be adapted to reflect the science available. It should be capable of stimulating these developments toward new research and the development of innovative products and useful information to the benefit of the consumer, including but not limited to public health messages. (Biesalski et al. 2011, pp. 17–18, my emphasis)

12  I took this citation from a broadcasted interview by NutraIngredients reporter Shane Starling: http://www.nutraingredients.com/Regulation/ Clinical-trial-design-in-the-new-EU-health-claims-regime-Now-we-have-to-work-on-theborderline

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This is the conclusion of an article on ‘evidence-based nutrition’, published in Nutrition in 2011. It is authored by 13 life scientists with specializations in biology, biological chemistry, nutrition, and ‘gut science’. The second author was also second author of the FUFOSE Consensus Document, discussed in Chap. 3, and he was the first author of the PASSCLAIM consensus on criteria article in the European Journal of Nutrition in 2005. In other words, the ILSI ‘functional food science’ community has renamed itself in opposition to evidence-based medicine, and they make more explicit claims on having a discipline proper. This new nutrition seems to demand the same adaptations and capacity from bodies as it does from politics: systems capable to adapt to, or accommodate, new stimuli and concepts. Their political agenda and its relation to evidence is also more explicit in this article, which is again the result of a Consensus Conference:13 There is a need to consider the “inverse precautionary principle”: if the evidence is not absolutely conclusive but substantially indicative of the effect, then take a management decision to allow the claimed effect for the benefit of the consumer. (Biesalski et al. 2011: 15)

A bit further, they go on: Society does not need the same level of certainty concerning the effect of a low-risk nutrient or food as it does for a potentially higher-risk (and much more expensive) drug. For example, […] if observational studies indicate the likelihood of a favorable effect, such a claim could be accepted because the harm of not accepting (i.e., possible benefits forgone) would outweigh the harm of approval (which would appear to be negligible even if the effect is actually null) (Biesalski et al. 2011: 16)

So according to these authors, there is no harm in accepting a claim, and even the slightest indication is good enough a reason to accept. An active component can only have good intentions, it would seem. It would never bend its capabilities to other purposes, like side effects. In distancing themselves from the practices of putting molecules to the test in 13  This conference had taken place at the University of Hohenheim where ‘(T)he experts spent a day presenting and discussing their views (...)’ (Biesalski et al. 2011, p. 2).

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pharmacology and medicine, these authors carve out a territory for their own practices and statements. Chronologically, EFSA became operational between the PASSCLAIM project and the here discussed 2011 article on EBN, enabling the authors to write their history in a certain manner by stating that the prominence of the RCT in the evaluation of functional foods ‘was not part of their intentions’. Thus, it would almost seem that Europe has misunderstood and let down an emerging new science. This is reminiscent of the figure of the ‘abandoned scientist’ that the Pasteur Institute professor evoked earlier. Health claims’ space of mobilization has encouraged the actors involved to re-formulate their programme and take on the identity of a professional group. Targeting the general population, and certain subgroups with ‘risk factors’, this community envisions a market bigger than that of the pharmaceutical industry, and a scientific territory composed of the same elements that have granted a historic authority to medicine: its own expert and guideline groups, conferences, journals, etc. Like functional foods that enter into an ambiguous relation to drugs, the professional community adhering to EBN enters into an ambiguous relation to EBM. Functional food and EBN mirror what they wish to distance themselves from: drugs and EBM.  This uneasy exercise is maintained right up to the choice of specific words, exactly like in the FUFOSE project. As we can read in the 2011 article: Perhaps the final step is to skip the word 'biomarker', which has become a paradigm in itself. We are now approaching the stage in biological research where we describe, understand, and quantify the molecular physiologic processes instead of a single parameter in a single point in time that is supposed to capture biological complexity. Nutrition is about health, and once we capture the relevant processes involved in maintaining optimal health, i.e., that continuously adapt under a variety of perturbations, we refocus on the real role of nutrition. In contrast to 100 y ago, we can do this with the help of rapidly increasing biological knowledge and a wide array of newly emerging technologies. (Biesalski et al. 2011: 17)

This excerpt reveals two fundamental tensions, which in fact rephrase the same concerns as those we have identified in the FUFOSE Consensus Document. Firstly, the authors propose to strategically avoid the term biomarker. They see it as related to pathology and ‘laboratory-oriented

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markers’14 that deal, like drugs, with single end points, single effects, etc., rather than with complexity. This tension then, is that of ‘complexity’ versus what is seen as the one-dimensional approach of drug research. Secondly, nutrition’s true role is related to health. Health is again played out against disease, the latter pertaining to the realm of drugs. Health is defined by the EBN community as the ability to adapt to one’s environment and perturbations.15 Through the concept of homeostasis, health and disease are put into a competitive scheme: perturbations and challenges put stress on bodily functions, and when these attacks amount above a certain threshold, health becomes disease. Body functions and parameters (which become ‘markers’ in experimental research) must be kept within a normal range of variability to maintain health. This range is where specific food components may help to maintain or reinforce for instance our immunity. Health and disease are placed on a continuum, but a threshold keeps them well apart at the same time. The homeostasis concept is of course more widespread than among the EBN community. It is seen as a promising area of research, also by some of the EFSA panellists.16 But EFSA does not accept all markers proposed, and privileges hard clinical endpoints. This is where the EBN movement advances an alternative, since research designs that focus on these clinical endpoints do not allow the analyst to take into account the more subtle responses of the body to food components. By emphasizing complexity and subtle interactions between nutrients and body functions, the claim technicians lay a claim on the body itself: they are the ones who develop the fine-grained tools to understand all the mechanisms of our mysterious bodies. The RCT with its test and placebo groups would then appear as a rough and clumsy tool with respect to the new nutrition science of EBN. A variety of ways to provide exactly this kind of evidence are proposed in the EBN article quoted higher (Biesalski et  al. 2011), sometimes 14  ‘(...) they are markers of, really, chemical pathology, you know what I mean: they are laboratory oriented markers. We felt that there were opportunities for other markers’. Personal Interview with one of the authors of PASSCLAIM and the article on EBN (Biesalski, 2011). Brussels, 15/03/11. 15  See, for example, Biesalski (2011) and an anonymous short article in The Lancet. In this article, the idea of health as the ability to adapt is supported with arguments of physician and philosopher Georges Canguilhem. These arguments are seen as a basis for personalized medicine. See Anonymous (2009). 16  Interview with EFSA panel member, 16/12/11. Repeated at an informal conversation in March 2012, during the conference organized by KNAW in Amsterdam.

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referring to methods yet to be developed. A key role in all these methods, the article explains, is reserved for ‘markers’, as an intermediate step between the body’s response to a component on the one hand, and a clinical outcome to be expected on the other. The marker is only valid if it has a predictive value with regard to a person’s health state. Immunoglobin levels, systemic cytokine concentrations, or number and activity of phagocytic cells are mentioned as possible markers for modulations of the immune system. At the same time, the difficulty to draw general conclusions about a person’s immune system from a single marker is recognized. The challenge, then, is how and which markers can be made to represent a ‘good reaction’ of the body—a reaction beneficial for health. Markers are to become the body’s reliable witnesses, but they do more than responding to a stimulus: they make a promise. The challenge for marker-oriented research into functional foods is to inscribe and stabilize a future therapeutic scenario in one or several (bio) markers. In this way, nutrients or food become ‘charged’ with a health claim. For EBN, markers are not only the articulation point between a nutrient and a promised outcome, but also between that nutrient and the market. EBN thus develops a specific version of the human body as a body of evidence: the evidence is a promise inscribed in a marker. The marker indexes a future state of health. The marker creates an indexed body as the point of articulation between a nutrient and the market. The indexed body is a body that is represented through something else: a marker, an index, a signpost. For EBN, health claims are on a conceptual plane where the body cannot object, interfere, prove the contrary. Health claims concern a version of ‘health’ without bodies. This chapter has shown that the negotiations between health claim advocates and the European Authorities around clinical evidence displace and re-establish the boundary between the pharmaceutical and the food sector by anchoring and warranting it in the human body. The concepts of ‘reduction of disease risk factors’ and ‘suboptimal health’ allow for a different mobilization of the human body in R&D practices to develop health claims. The term ‘body of evidence’, often used to designate the scientific data available for a claim, takes on a very literal meaning: a new way of mobilizing the human body and its health status is concomitant to the production of scientific data for health claims. A body considered to be in suboptimal health can now come to incarnate the promise of becoming better, without recourse to medicine. What counts as ‘clinical’ is the working of markers that stand in a statistical relationship to the development of

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symptoms and disease (in the case of a disease risk reduction claim), or ‘normal function’ in the case of a general function claim. Both are related to the concept of risk: either the marker is a risk factor, or it is a marker of ‘normal functioning’ that might become pathological if its normal functioning is compromised by a lack of a specific food component in the diet. The relation of these two versions of risk to clinical manifestations of disease is based on statistics and a mechanistic conception of the body.

References Aggett, P. (2009). The Process for the Assessment of Scientific Support for Claims on Food. European Journal of Nutrition, 48(Suppl. 1), S23–S26. Armstrong, D. (2007). Professionalism, Indeterminacy and the EBM Project. BioSocieties, 2, 73–84. Biesalski, H. K., Aggett, P. J., Anton, R., Bernstein, P. S., Blumberg, J., Heaney, R. P., Henry, J., Nolan, J. M., Richardson, D. P., van Ommen, B., Witkamp, R.  F., Rijkers, G.  T., & Zöllner, I. (2011). 26th Hohenheim Consensus Conference. Scientific Substantiation of Health Claims: Evidence-Based Nutrition. Nutrition, 27, S1–S20. Bijker, W., Bal, R., & Hendriks, R. (2009). The Paradox of Scientific Authority. The Role of Scientific Advice in Democracies. MIT Press. Callon, M. (2007). Europe Wrestling with Technology. Economy and Society, 33(1), 121–134. Deleuze, G., & Guattari, F. (1987). A Thousand Plateaus. Capitalism and Schizophrenia. University of Minnesota Press. Deleuze, G., & Parnet, C. (1996). Dialogues. Flammarion. Demortain, D. (2011). Scientists and the Regulation of Risk. Standardising Control. Edward Elgar. Denny, K. (1999). Evidence-Based Medicine and Medical Authority. Journal of Medical Humanities, 20(4), 247–263. Despret, V. (2013). From Secret Agents to Interagency. History and Theory. Theme Issue, 52, 29–44. EFSA. (2007). Scientific and Technical Guidance for the Preparation of the Application for Authorisation of a Health Claim. EFSA Journal, 530, 1–44. EFSA. (2009). Scientific Opinion on the Substantiation of a Health Claim Related to Bimuno™ and Reduction of the Bad Bacteria that Can Cause Traveller’s Diarrhoea. EFSA Journal, 1105, 1–9. EFSA. (2011). General Guidance for Stakeholders on the Evaluation of Article 13.1, 13.5 and 14 Health Claims. EFSA Journal, 9(4), 2135.

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EFSA. (2017). Scientific and Technical Guidance for the Preparation and Presentation of a Health Claim Application (Revision 2), EFSA Journal, 15(1), e04680, pp. 1–31. Epstein, S. (1996). Impure Science: AIDS, Activism and the Politics of Knowledge. University of California Press. Finlay, M. (1995). Early Marketing of the Theory of Nutrition: The Science and Culture of Liebig’s Extract of Meat. In H.  Kamminga & A.  Cunningham (Eds.), The Science and Culture of Nutrition (pp. 1840–1940). Rodopi. Goffman, E. (1959). The Presentation of Self in Everyday Life. Penguin. Granjou, C., Mauz, I., & Daccache, M. (2013). Les conditions de l’articulation entre recherche et expertise. Le cas des recherches sur la biodiversité. Revue d’anthropologie des connaissances, 7(1), 67–86. Health Claims Regulation (2006). Regulation No. 1924/2006 of the European Parliament and of the Council of 20 December 2006 on Nutrition and Health Claims Made on Foods, OJ, L 404, 30 December: 9–25. Hendrickx, K., & Dooms, M. (2021). Orphan Drugs, Compounded Medication and Pharmaceutical Commons. Frontiers in Pharmacology, 10(12), 738458. Kamminga, H. (1995). Nutrition for the People, or the Fate of Jacob Moleschott’s Contest for a Humanist Science. In H. Kamminga & A. Cunningham (Eds.), The Science and Culture of Nutrition (pp. 1840–1940). Rodopi. Kamminga, H., & Cunningham, A. (Eds.). (1995). The Science and Culture of Nutrition, 1840-1940. Rodopi. Marks, H. (2009). What Does Evidence Do? Histories of Therapeutic Research. In C.  Bonah, C.  Masutti, A.  Rasmussen, & J.  Simon (Eds.), Harmonizing Drugs. Standards in 20th-Century Pharmaceutical History. Editions Glyphe. Nathan, T., & Stengers, I. (2004). Médecins et sorciers. Les Empêcheurs de penser en rond. Petryna, A. (2009). When Experiments Travel. Clinical Trials and the Global Search for Human Subjects. Princeton University Press. Pignarre, P. (1997). Qu'est-ce qu'un médicament? La Découverte. Pignarre, P. (2004). Le grand secret de l’industrie pharmaceutique. La Découverte. Sinclair, S. (2004). Evidence-Based Medicine: A New Ritual in Medical Teaching. British Medical Bulletin, 69, 179–196. Starling, S. (2011). EU Researchers Revolted as EFSA Clears Health Claims Vault. NutraIngredients, 4th July 2011. Stengers, I. (2023). Virgin Mary and the Neutrino. Duke University Press. Timmermans, S., & Berg, M. (2003). The Gold Standard: The Challenge of Evidence-Based Medicine and Standardization in Health Care. Temple University Press. Timmermans, S., & Kolker, E. (2004). Evidence-Based Medicine and the Reconfiguration of Medical Knowledge. Journal of Health and Social Behavior., 45, Extra Issue, 177–193.

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Timmermans, S., & Oh, H. (2010). The Continued Social Transformation of the Medical Profession. Journal of Health and Social Behavior, 51, 94–106. Villaneuva-Russell, Y. (2005). Evidence-Based Medicine and Its Implications for the Profession of Chiropractic. Social Science and Medicine, 60, 545–561.

CHAPTER 7

Territorial Disputes

In the introductory chapter to this book, I announced that we would come across some anthropological riddles—awkward statements made by people in the field—and that we should try and make sense of them, lest we assume that our informants do not know what they are saying. One riddle was: ‘we see claims as information and not as food’, and it took us some time to come to terms with this simple phrase, which turned out to be not that simple. It covers an entire history of law-making and a most peculiar way of translating food into information. Another riddle was uttered to me during a coffee break at a conference organized by ILSI Europe, not long before the conference at the Royal Academy to which we will return shortly. It was becoming clear that EFSA was rejecting lots of claims, and that they were not applying the assessment criteria that ILSI and the EBN community had hoped it would. Through their numerous publications and projects, they had indeed prepared the way for another type of assessment altogether: evidence-based nutrition. So during this coffee break, I was talking about these different approaches with a man who worked for Cargill—a major food ingredient supplier. In this conversation, he said that EFSA wasn’t up to date with its science, and he criticized the panellists and their way of working. He remarked laconically: ‘well, Parma is far you know’, and then said something about connecting

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flights and the time it takes to get there.1 Parma is the headquarters of EFSA, that much I knew, but what has geographical distance got to do with evidence-bases? We will find an answer to that question in this chapter, and for that we need to look into the debates that were organized in 2012 at the Royal Netherlands Academy of Arts and Sciences. As I mentioned at the beginning of the previous chapter, a conference was organized at the Royal Academy with the title: ‘what is scientific evidence for health claims?’ The question was asked 5 years after the Claims Regulation went into force and EFSA had virtually worked its way through the thousands of claims that had been introduced to the agency. Why ask the question at this point? The question, as we will see, arose out of a disagreement between representatives or adherents of EFSA and its EBM-derived methods on the one hand, and a loose community of company representatives and researchers who believed that nutrition science should use different methodologies. We are now familiar with the difference between evidence-based medicine (EBM) and evidence-based nutrition (EBN), and we have analysed how they privilege different types of trials that socialize molecules or food ingredients by organizing their encounter with human bodies. What the debates at the Royal Academy suggest is that these evidence-bases also socialize their human promoters in a particular way. I will focus on two presenters at the conference whose takes on the question of ‘evidence’ are diametrically opposed. What is remarkable, is the way in which their conception of evidence is tied to a moral and political disposition, and a vision on governance and the development of the market. By focusing not only on the content of what these two protagonists say, but also on the form of their statements, a remarkable parallelism emerges between the socialization of food ingredients and those who speak in their name at a public 1  As an ethnographer, you do not walk around with your voice recorder, which you reserve for more formal settings and interview situations. A great deal of the work is done by ‘hanging around’, striking up conversations, observing, etc. So you rely on memory and quick notes. The phrase ‘Parma is far, you know’ was in my field notes along with the general lines of the conversation and other fragments of information. That is why I write: ‘He said something about …’, which sounds easy-going when it comes to standards of rigour. However, such field notes depend on memory, and memory depends on understanding. The significance of travelling to Parma, to which I return at the end of the chapter, was lost on me during the conversation, and the fragmentary field notes reflect this. In this case, a recording of the exact wordings during the conversation would not have led me any further in my understanding.

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conference. This observation reminds what historian of science Lorraine Daston (1995) calls the moral economy of science: valid scientific principles, such as objectivity, are shaped by  particular societal virtues, incarnated by  specific socio-professional groups. This concept has also been referred to by historian Harry Marks (2009), who characterized evidence-­ based medicine as a moral economy in his study of the emergence of a professional medical community whose identity was at stake. The question I ask here is whether the debates at the Royal Academy indicate that the concept of a moral economy may account for the way two protagonists conceive of evidence for health claims on the one hand, and how they present themselves and address one another on the other hand. Using the concept of a moral economy as a guide in the analysis below, I will first report on the debates at the Academy. Next, I will return to the concept of a moral economy and propose a version of it that accounts for the participation of food itself in that economy.

‘First Say Where You Come From!’ Let us now take a seat in the conference room of the Royal Academy.2 ‘What is scientific evidence for nutrition and health claims?’ is the title of this conference. After the opening address by the Conference Chair, who just presented research in nutrition as having two faces—the Dr. Jekyll-­ diet face and the Mr. Hyde-food face (see Chap. 6)—our first speaker is Martijn Katan, a well-known nutrition scientist in the Netherlands and member of the Royal Academy. He started his keynote by contextualizing the symposium itself: But first, how did this meeting arise? As already mentioned, it was one of the scientists from the probiotics field who suggested that the Academy organize a meeting about this. For those of you who don't know: probiotics are so-called beneficial microbes, they are bacteria and yeasts which you eat and which are supposed to benefit your wellbeing and health. (Katan, my transcription)

Katan immediately invokes a difference, or rather a provenance: this meeting wasn’t his idea, but it was suggested by scientists who develop 2  I attended this symposium in Amsterdam on March 26, 2012, and recorded the discussions. The keynote presentations had also been made available on the Academy’s website as audio files.

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probiotics. He then discusses evidence by going through the different types of biological and clinical trials and their respective strengths and weaknesses. The most valuable trial for him is the placebo-controlled clinical trial, although it has its own problems as he reminds the audience. Katan advocates an approach similar to evidence-based medicine (EBM): a systematic review of clinical and non-clinical studies, based on a hierarchy of studies with the RCT at the top. Katan sides with science and EFSA, because he thinks that we are going through a terrible crisis of confidence in science. And this crisis, as he says at one point: ‘is a threat to the health and well-being of society’. Katan argues that steps need to be taken to restore this lost trust, and he proposes, towards the end of his talk, to abolish industry-funded nutrition research in universities, and to exclude industry-funded scientists from all scientific advisory agencies or institutions. He then states that he had worked for industry in the past, but that he has ceased doing so. This statement is almost like a confession and a testimony, and one could have easily imagined him adding (although he didn’t say it): ‘I have changed my ways and things are better now’. Someone in the audience asks Katan: ‘What is your definition of a healthy food?’ And Katan replies: ‘I think a food is healthy if it carries a health claim approved by the EFSA panel’. A man stands up in the audience and presents himself to Katan: ‘Martijn, my name is WVG—we know each other—and I enjoyed the first part [of your presentation] because there you show you still know what you are talking about, but the second part I cannot agree with at all’. Katan’s first part was about different types of clinical trials and evidence. The second part was about trust in science and the exclusion of corporate funding or representation in universities and public institutions. These statements had caused some discreet coughing and shuffling of feet in the audience, and WVG was now about to tell why he didn’t agree with Katan’s vision at all. Katan interrupts here and asks the man: ‘Maybe you should tell the audience a little bit about where you come from’. Katan personally knows his critic in the audience, and he uses this to draw a confession out of his critic who is a researcher and developer in the food business world. Katan, being critical of industry ties, is in fact imposing a declaration of interests so that the audience may situate what the man is about to say—that is: situate the provenance of the man and his statements, where they come from. Katan had, in his keynote, also situated himself: on the side of impartial and objective science; on the side of EFSA. It is worth reminding here that EFSA had been created in response

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to food contamination scandals on the European market, and the BSE crisis in particular (Lezaun & Groenleer, 2006). The event being called a crisis has to do with the double nature of the contamination: cow meat was contaminated, but so was judgement: the late reaction and insufficient measures taken have been analysed as a result of conflicting interests within specific committees in the EU Commission (Fallon, 2002). The creation of the EFSA as an agency with an independent advisory role to the Commission was to restore trust in the EU Institutions and their governance of the food market and production system: a promise that food and science would no longer be contaminated. Katan reiterates that commitment. An interesting retorque to this comes a bit later in the keynote address of Wim Saris. This second protagonist is equally well-known in the world of nutrition science, research, and development. He presents himself as being Wim Saris and where he works. He speaks calmly and with a touch of ironic understatement that contrasts with Katan’s more passionate defence of disinterested science: Because I am working in the Top Institute Food and Nutrition, I also have to declare my, euh, competing interests. (Saris, my transcription)

Saris then displays a slide, densely populated with about 20 logos of private companies and public research institutes. Such a slide, often used at conferences to display one’s multiple attachments and prestige, now takes on a new meaning. It becomes an argument ad absurdam, much to the audience’s amusement. For a very brief moment, just long enough to accommodate the loud laughter of the audience, Saris does not move, gesticulate, or argue. Earlier on, Katan had declared that he didn’t work with industry anymore. Now, and for a very brief moment, Saris’ slide and body language make Saris exist as a victim of his competing interests (‘I have to declare’)—a victim of his success, as if he were saying: ‘surely all these logos are bad, but it’s not my fault if excellent scientists, working at the Top Institute, are recognized for their expertise by prestigious institutions and innovative companies’. The logos form a personal CV, appreciable in one glimpse because of their disposition and the many colours on one slide. With a single slide, he is able to suggest that he travels many different spaces, granting him a form of authority as the accumulated result of all these activities, missions, performances, and tests.

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Saris enacts a moral economy in which humans and food ingredients become socialized in the same manner to obtain public authority: through multiple associations without a particular hierarchy. Saris is indeed a fervent adherent to evidence-based nutrition. He shows himself to be a critic of the RCT and of ‘pharma-biomarkers’, as he puts it, for nutrition: What EFSA has done is really taking the evaluation system which is available from the pharmaceutical, euh, area, where you have one single target and you have mostly a very strong effect, and if you talk about food you have […] small effects in multiple targets, and that makes it quite difficult to make a judgement whether something is working or not […] That is not an easy task and randomized control cannot solve that at all. (Saris, my transcription)

Many small effects in multiple targets are opposed to what appears as EFSA’s chunky evaluation system based on one single target and one effect. Whether Saris is right or not is not the question. What is remarkable, is the opposition between the singular, simple, and one-directional as unsuitable, and the multiple, complex, multi-directional as suitable. This parallels the way Saris presents his person, through a complex of many different logos. As we have seen, the logic of functional food science or EBN is one where evidence stems from heterogeneous sources, without privileging one specific type of test. A food ingredient’s socialization happens through these different tests. The ingredient, according to EBN, must have a rich CV of former collaborations (with mice, in vitro cells, different biomarkers in human beings, …). Like Saris, the ingredient must be able to display its logos. Saris’ presentation contrasts strongly with Katan’s solemn defence of science, coming from a single authoritative source, namely EFSA, privileging RCTs. RCT’s, for sure, are also characterized by a multiplicity of tests but the whole socialization process of molecules is subjected to the ultimate statistical comparison between test and control (placebo) groups. It is the test that, as Philippe Pignarre (1997) says, makes the scientists, company leaders and shareholders tremble, because the molecule’s entire (and costly) socialization process may turn out to be for nothing. EFSA panel members are not allowed to have an active professional relationship to industry, and if they’ve had one, a ‘cooling-off period’ is required before being eligible to the panel. Katan and Saris represent two extreme positions in the space of mobilization that I am discussing. Evidence and

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provenance, or affiliation, reinforce each other and, as such, they can appear in two forms, two modes of becoming socialized in the world, two moral codes: one code gains public authority through gradual purification, the other through association. This doesn’t make them symmetrical or equivalent as simply two different viewpoints, or a disagreement, on the same issue. The rift runs deeper. Pausing at his slide with the many logos, Saris mentions casually that he has not reached the age of retirement yet, and so he still collaborates with industry. A tongue-in-cheek retorque to Katan who had solemnly declared that his collaborations with industry were over. We could choose not to pay any specific attention to a remark that sounds like a little stab under the belt ad hominem: Katan is retired and has lost touch with the real world. He criticizes from his position of relative luxury and comfort. But this is not just about Katan. It is independent science, EFSA, and Katan’s criticism of industry that are placed under the sign of retirement, isolation, stepping out of professional life, out of networks—in short: Katan, nor EFSA, are where innovative knowledge is being produced. Saris concludes his presentation with a world map full of arrows pointing away from Europe: ‘Innovation moves out of Europe’, it says on his slide, while EFSA continues to use ‘old science’ to judge health claims, it says on the next slide. The final slide concludes that EFSA is ‘discouraging innovation and research’. The figure of the discouraged scientist that the professor from the Pasteur Institute evoked in the previous chapter turns up again. The confident entrepreneur with many logos, it would seem, uses the figure of the discouraged scientist to point out the wrongdoing of EFSA to innovation and nutrition science. A couple of months before this debate at the Royal Academy, over a coffee break, a man from a major food ingredient company laconically mentioned: ‘EFSA is far, you know’. We can now make sense of that remark. Far has several related meanings here. Firstly, EFSA is indeed geographically remote from the European Institutions in Brussels. It is as much a geographical as a political distance. After the BSE crisis, the EU wanted to clearly separate science from politics; independent advice from interests; risk assessment from risk management by establishing the EFSA headquarters in Parma rather than in Brussels. Secondly, the distance to Parma matters, even in times of global mobility, because the connection to Parma is not immediate: flights go to Milan first and then a train is in order. This may seem anecdotal but the fact that this particular person alluded to it as part of his criticism of the EFSA panel members makes sense if you consider the time it takes to get to Parma, irrespective of this being an exaggeration or not.

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What this person was telling me was that being member of the panel is reserved for people who have the time for it. People who are not very active in research and innovation, armchair scientists cut off from the real world where the action is happening and using ‘old science’—a term that was repeated all the time, even on power point slides. So EFSA as an agency is far in a third sense as well: far from where the action is.

A Moral Economy, with Things in It In her historical approach to different forms of objectivity and empiricism, Lorraine Daston says the following: ‘What I mean by a moral economy is a web of affect-saturated values that stand and function in well-defined relationship to one another’ (Daston, 1995:4). For Daston, moral refers to the psychological and the normative, while economy is ‘a balanced system of emotional forces, with equilibrium points and constraints. Although it is a contingent, malleable thing of no necessity, a moral economy has a certain logic to its composition and operations. Not all conceivable combinations of affects and values are in fact possible’ (Daston, 1995: 4). She adds that moral economies are about the mental states of collectives. A moral economy is contingent, yet not all combinations of affects and values are possible: this is interesting in relation to the debate at the Royal Academy. The positions of the speakers are contingent and not necessary by way of some transcendent epistemological principle, like the nature of scientific evidence. Scientific evidence is at stake in the debate. Put differently, contingency means that things need to be analysed according to a specific historical situation (and it is not surprising that Daston, as a historian, privileges this approach). But contingency does not mean that anything is possible, and this is precisely what we witness in the debate: two positions that are not combinable. What the concept does not help us with, if we take it literally as Daston proposed it, is the question how things partake in moral economies. How the socialization that the moral economy articulates involves both persons and things. In that respect, it is interesting to briefly revisit a classical work in the history of science that Daston herself refers to as she develops the concept of a moral economy: Leviathan and the Air-Pump by Steven Shapin and Simon Schaffer (1985). This book talks about the birth of a new kind of fact in the seventeenth century, established by demonstrations for privileged audiences. They show that it is not enough to conduct and display an experiment with, for example, an air-pump that creates a vacuum. The facts must be certified,

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corroborated. According to the culture of the time, and the specific moral economy of science that took root within it, only gentlemen were considered reliable witnesses, because there was a moral code of trust among them, and because they were considered better capable of objective observation than women. Controlling their passions and emotions made them capable of self-effacement; nothing would come in between their gaze and their rational mind. The moral code was that of the gentleman, and a quote that captures this code well is  Robert Boyle saying: ‘for I love to speak of persons with civility, though of things with freedom’.3 Was what we witnessed at the Royal Academy not almost the exact opposite? Did the protagonists not take some liberty when addressing one another in their little attacks ad hominem? Or were these remarks not simply ad hominem, as I suggested in the analysis? This question prompts me to insist on both terms of Boyle’s citation: persons and things. Boyle’s citation above grants a different status to persons and things, and a different moral code to speak about them respectively. Shapin and Schaffer’s book analyses how a new kind of fact, the experimental fact, depends on a particular socialization of both persons and things. In other words: the production of experimental facts was only possible by socializing things and persons in a common situation and through a common orchestration. For Boyle, matters of fact were agreed upon by a collective of individuals (a ‘union of eyes and hands’), acting as witnesses of experiments with experimental devices such as an air-pump creating a vacuum.4 What happens if we put a bird in it? What happens if … and so on. The individuals gathered became witnesses of the workings of this device and the phenomena it produced, and they could then collectively and publicly agree or disagree on what was the matter of fact.5 Paradoxically, this experimental space of socialization, as Shapin and Schaffer also observe, factored out all human agency that made the air-­ pump functional in the first place: the maintenance work, cleaning, repairing, adjusting of what was basically a very unreliable instrument. Factoring that out, the air-pump was considered to produce phenomena all on its own, without human intervention: the experimental ‘fact’ was  Quoted in: Shapin and Schaffer (1985): 73  Boyle considers this space to be ‘public’, but it was very restricted at the same time, see, for example, p. 39, and p. 78. 5  For Hobbes, concerned with the atrocities of civil war, such a dependency on belief and artefacts couldn’t possibly constitute a safe basis for social order. 3 4

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born, a new type of truth-statement in the history of natural philosophy. But let us put the emphasis right: what matters here is that a division between things and persons was only possible by creating a new kind of situation– a common socialization process involving both persons and things. Put differently, persons and things have not stopped relating to each other, but the experimental situation reconfigured those relations. This particular relation made it possible to say that a device produces a fact independently of human action, which allowed talking freely of things (‘facts’), but with civility of persons (who are different from things and witnessing them in a relation of mutual trust). The validity of facts in the experimental situation also depended upon a gendered division of bodies. Gentlemen were the reliable witnesses as they, contrary to women, were considered capable to form a judgement untainted by the body or by emotion (Haraway, 1997). This reminds the story in Chap. 5 of liberal diseases and why educated men could not possibly be alcoholic (Valverde, 1997). It is ironic that the Royal Academy, housed in a neoclassical building, Greek pediment included, should provide a counterpoint to the idea of the agora in which debates take place between the untainted minds of free men. The discussion between Katan and Saris is not one between the untainted minds of free men, but between … between what exactly? The concept of the moral economy helps us to think about the fundamental connection between knowledge and social order: it helps us to ask a sharper question as to what enters into opposition at the Royal Academy, other than two Dutch personalities in a public performance. A moral economy, with things in it, prevents us from interpreting the confrontation through an inconsiderate use of metaphors that relate to theatre and public performance—a problem we already came by in the previous chapter. Inconsiderate, because we might take the theatre metaphor up too lightly—not taking into account the full scope of what performance might imply. Not taking into account the full load of the statements and gestures. The confrontation is not just about two personalities, emphasizing their respective positions by adopting a ‘role’ and some extra props while on stage. If we stick to the theatre metaphor to analyse the gestures, statements, power point slides, allusions, and so on, then we must concede that none of these ‘props’ are coincidental. They signify something beyond the context of the performance at the Royal Academy. The distinction between backstage and frontstage is not clear-cut, and the public statements are more than a rhetorical façade for the sake of persuasion in a public performance. The two protagonists might indeed dramatize and polarize the

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scene, but what matters is that, in order to do so, they are mobilizing the operators, the lines of force, that constitute evidence as a processes of socialization for both food ingredients and humans: the kind of tests that both must go through to prove their worth. Dramatization and polarization result from that mobilization. We already saw in Chap. 6 that clinical trials socialize food and humans in the sense that they organize the encounter between an ingredient and the body. What enters into conflict at the Royal Academy, then, are two modes of socialization that are not geared to establish experimental facts, but to control truth statements about metabolism within the fabric of a liberal market economy. The work that is necessary to produce such a version of truth is considerable, because a workable articulation must be sought between the conditions that make the market function—information and choice- and the material reality of metabolism that is not easily pressed into the service of what the market requires. It has led, as we saw in the previous chapter, to the invention of a new kind of body—a body of markers, an indexing body—as a counterpoint to a body that speaks through clinical symptoms. Anthropological riddles such as ‘Parma is far’ and the seemingly anecdotal remarks ad hominem at the Royal Academy concerning ‘where one comes from’ point out that the disagreements about stratagemic evidence are not scientific or epistemological. What I am hinting at is a moral economy writ large—not reserved to the mental states of collectives: it ties together a food production system and the governance of information; particular forms of evidence; moral-­ political dispositions and the nature of food products. Socialization processes involving humans and food may vary and be disputed within certain limits, opposing what I have (barely) simplified above as a logic of association, versus one of purification, to determine the worth of evidence, ingredients, and persons. Boasting one’s associations versus denouncing conflicts of interest are two positions within a common problem space that identifies actors in terms of their belonging to ‘industry’, ‘policymaking’, or ‘science’. It is perhaps more interesting to shift the analysis to a process that is constitutive of a territory that is deeply historical, political, and moral in a way that exceeds the mere problem of conflicts of interest.

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Metabolic Territory How does a moral economy relate to the concepts of territory and de/ re-territorialization (Deleuze and Guattari, 1987) that I have used in the previous chapter when discussing the body, metabolism and clinical trials? Perhaps a moral economy is what gives  direction to  processes of de/ reterritorialization. Consider the history of nutrition science itself. As we already saw, Justus von Liebig and Jacob Moleschott were two eminent scientists in the nineteenth century with completely different visions on the kind of food and the kind of society that mattered (Kamminga, 1995). They were defending and performing what I would call two different metabolic territories: two ways of articulating metabolism and political order. Moleschott’s philosophy related food to human dignity and political freedom, and it stood in stark contrast to Liebig’s entrepreneurial disposition towards food production. Is territorialization in this case not another name for the way that eating implies the ingestion of food and of a political and economic order? Are we not coming full circle here, to the history of sugar and how it has shaped not only the metabolism of millions, but also the material and conceptual scaffolding for functional foods? Sugar and its production infrastructure have preserved their territory by promoting related carbohydrates as functional foods, such as inulin and the new category of ‘inulin-type fructans’, as we have seen in Chap. 2. This was possible with the help of lobbying organizations like ILSI that specialize in redefining classifications. The example of inulin is instructive as its inclusion in the category of fibres was strategically important. A host of papers were published on carbohydrate classifications that redefined the group of ‘fibres’ by including shorter-chain carbohydrates. But this involves more than classification: it involves what we are buying and what we eat. The history of sugar by Sydney Mintz (1985) and the example of the sugar museum that I discussed in Chap. 2 show that moral judgement is part of its very production process: it has made ‘sugar’ move in some directions rather than others. The Tienen sugar museum in Chap. 2 showed that sugar moves in and out of relations, that its socialization is characterized by varying degrees of political and moral (in-)articulability. The museum, situated in a small town that developed with its sugar refinery, is a celebration of sugar and its socialization through food, employment, festivities (a realm of experience where sugar has always played an

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important role). This celebration of the co-development of sugar and humans came to a sudden halt in an exposition room about sugar’s potential adverse health effects. The museum made a topological twist from humans in sugar’s ecology of production, to consumers forming judgements and making choices. There are many types of sugar and the sugars we have today are the result of a historical political economy, a scalable capitalist production process, a violent process of deterritorialization and reterritorialization displacing entire human population as slaves, and plants as clones to colonies (Tsing, 2012; Mintz, 1985). Sugar is refined politics and morality in the most literal sense (Richardson, 2009). It is for this reason that I chose the Belgian sugar industry to ground the history of functional foods and health claims. The particular, local, and situated are often the best entry points into matters that extend widely and wildly beyond these places. If sugar’s legacy is territorial, then it is time to think production and consumption not as two ends of a supply chain, but as an ecology of metabolism. Food is where humans and other species ingest and metabolize the products of a specific societal order, including a particular version of ‘freedom’ that celebrates choice in common spaces of circulation. Information, judgement, morality, evidence-bases, and the central imperative of ‘not misleading the consumer’ in EU food legislation merit an ecological, territorial, and historically informed reading: untrustworthy information hampers not only the market but the sociotechnical order on which the market is legally and technically premised. Good science and bad science that warrant truthful information are not about science, but about the continued socialization of humans and food into a metabolic territory.

References Daston, L. (1995). The Moral Economy of Science. Osiris, 10, 3–24. Deleuze, G., & Guattari, F. (1987). A Thousand Plateaus. Capitalism and Schizophrenia. University of Minnesota Press. Fallon, C. (2002). Apprendre des crises: la “vache folle”. In S. Brunet, A. Bergmans, A. Bertrand, & P. Biren (Eds.), L’expertise en questions. Domestiquer l’incertitude dans la société du risque. Peter Lang. Haraway, D. (1997). Modest_Witness@Second_Millenium. Femaleman©_Meets_ Oncomouse. Routledge. Kamminga, H. (1995). Nutrition for the People, or the Fate of Jacob Moleschott’s Contest for a Humanist Science. In H. Kamminga & A. Cunningham (Eds.), The Science and Culture of Nutrition (pp. 1840–1940). Rodopi.

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Lezaun, J., & Groenleer, M. (2006). Food Control Emergencies and the Territorialization of the European Union. Journal of European Integration, 28(5), 437–455. Marks, H. (2009). What Does Evidence Do? Histories of Therapeutic Research. In C.  Bonah, C.  Masutti, A.  Rasmussen, & J.  Simon (Eds.), Harmonizing Drugs. Standards in 20th-Century Pharmaceutical History. Editions Glyphe. Mintz, S. (1985). Sweetness and Power. The Place of Sugar in Modern History. Penguin Books. Pignarre, P. (1997). Qu'est-ce qu'un médicament? La Découverte. Richardson, B. (2009). Sugar: Refined Power in a Global Regime. Palgrave Macmillan. Shapin, S., & Schaffer, S. (1985). Leviathan and the Air-Pump. Princeton University Press. Tsing, A. L. (2012). On Nonscalability: The Living World Is Not Amenable to Precision-Nested Scales. Common Knowledge, 18(3), 505–524. Valverde, M. (1997). ‘Slavery from Within’: The Invention of Alcoholism and the Question of Free Will. Social History, 22(3), 251–268.

CHAPTER 8

Health Without Bodies

Escape Routes Catch-22 is the title of a famous novel by Joseph Heller, published in 1961. The title has now become a term in itself to refer to a paradoxical situation, governed by contradictory rules that make it impossible for a person or a thing to escape from that situation. A ‘catch’ in English is indeed a form of capture, a trick, or even a trap. Heller’s novel is a satire about the daily activities of a squadron of air pilots, camped in Italy during the Second World War. The recurring theme in the book is the absurdity of the bureaucratic rules that govern life on the military base. The fundamental catch-22 rule always has the last word, although none of the characters, including the superiors, seems to know where it came from. The most famous example is about the quota of dangerous flying missions that a pilot is obliged to do, and the conditions to get exempted from having to fly them. Basically, if you’re considered mentally insane, you can be grounded and you don’t have to fly any more missions. But there’s a catch. In the novel, this is explained in a conversation between Yossarian, the main character in the novel, and Doc Daneeka, the army psychiatrist: “You mean there’s a catch?” “Sure there’s a catch”, Doc Daneeka replied. “Catch-22. Anyone who wants to get out of combat duty isn't really crazy.”

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 K. Hendrickx, Health Without Bodies, Health, Technology and Society, https://doi.org/10.1007/978-981-99-4950-2_8

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There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr [a colleague of Yossarian] was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane, he had to fly them. If he flew them, he was crazy and didn't have to; but if he didn't want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle. (Heller, 1961: 56)

So the catch plays on the difference between being considered sane or insane, in function of a person’s initiative. Let me now propose a similar— albeit hypothetical—situation, where the main players are not people but food ingredients, and where the issue is not a performance that leads to the qualification of a mental state as sane or insane, but a performance that entails the qualification of the molecule as either a food or a drug. The rules of the European Union make a strict separation between food and drugs, or rather between their respective markets. In theory, the risk of falling into the disturbing logic of Catch-22 is imaginable: if food aspires to be a therapeutic agent, it must demonstrate its therapeutic capacity. If it succeeds, it is no longer a food but a drug. If it fails, it cannot be a therapeutic agent and then there’s no sense in making claims about its agency. This situation evokes the theoretical impossibility to put on the market functional food. In reality, this situation does not really occur. Functional foods have become a real possibility, and some of them have been successfully placed on the market, contrary to many others like probiotics, at least for the moment. They have become a real possibility, because the concept of ‘functional food’ itself traced an escape route to stay away from the Catch. Functional foods now exist legally as foods with health claims. Nutrients of all kinds and bacterial strains are not evaluated in such a simple manner as Heller’s air pilots, and unlike the situation in the novel, the Catch-22 rule is not an unchangeable transcendent principle. What I discussed in this book shows the opposite: it is not about the impossibility to escape a transcendent paradoxical rule, but about the escape routes that are constantly being made, thereby changing the situation. In fact, in each

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chapter we came across tensions that needed to be resolved for the health claim to move further along its trajectory to become an object of government and an object of enunciation on the market: between health and disease; between the political instrument of information and the political decision concerning what the information will refer to; between different stratagems of scientific assessment or evidence-bases. These tensions and their solutions all implied specific manoeuvres towards, around, away from, the body. A movement that I have characterized as a relationship of indexation or signposting. Health claims, governed by a European Regulation (Health Claims Regulation, 2006) and EFSA’s assessment procedures, are currently not causing much of a controversy. They could be said to have been merely a storm in a glass of water; a failed or successful attempt, depending on one’s point of view, at using health as an argument to sell products. But if it is possible to say this, then it is because it is an assertion after the fact. Health claims are the outcome of a process, a trajectory. They were formed in a space of mobilization where the relation between food and health emerged as a specific problem. The solution to the problem was not determined in advance and might still change in the course of time, but the space in which the problem emerged is characterized by specific constraints. Things that appear as silly or absurd, like the claim that water hydrates in the opening chapter to this book, indicate that some kind of limit has been reached to what is possible within this particular problem space. The time, means, and resources that are invested in order to settle a case over a claim that is as much obvious as it is absurd, indicate that we are dealing not just with a particular claim or phrase, an advertising ‘puff’, but with something more fundamental: the possibility of a new type of truth-statement in the juridical-political fabric that we call the market. In fact, the market itself appears as something where ‘things’ not only become standardized and harmonized, but articulated, materially and semiotically, in a specific way according to particular constraints. What I have called ‘referential displacement’ in Chap. 5 attests to this: information about food doesn’t necessarily come as an additional piece of disclosure on a road towards more transparency. It is not the case that the real properties of food have been certified after a centralized scientific check by EFSA. The book argues that it is important to attend to what Andrew Barry (2013), inspired by Judith Butler (1993), calls information’s ‘constitutive outside’. This outside hinges on techno-political discussion, lobbying, and decisions where the boundary between health and disease is at stake, along

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with food’s materiality. This ‘constitutive outside’ is not a stable backdrop against which information’s value and veracity can be assessed, but it is bound up with the production of information. The concept of referential displacement pinpoints a process where the production of information transforms what the information is about—its referents: food, health, and the body. Food and health claims do not directly refer each other, but they are separated by a number of transformative steps. The relation between food and health claims is one of inference rather than reference; of indexing rather than disclosing or informing. In a similar fashion, biomarkers in the body index a future state of optimized health, or a risk of suboptimal health. This book uncovers a fundamental relation between the human body and the market: the body is mobilized to warrant the distinction between medicinal statements and health claims—the distinction between the pharmaceutical and food sectors, respectively. Calling it the Common Market or Single Market is somewhat misleading because this market really consists of a plurality of markets and regulations. This plurality can only function, and goods can only circulate without national trade barriers, if the boundaries between the different markets or segments are defined and warranted. Health claims have threatened to blur the boundary between food and medicine in the early 2000s, and the redefinition of that boundary has made health claims possible today. The way that health claims emerged as a problem, and took shape in the process, expresses what we could call a cultural politics, in the sense that culture affects the way problems are formulated in politics, but also the other way round: culture is itself shaped by political legacy. Cultural politics as I understand it here is not a matter of cause and effect. This book does not unveil any causes, cultural or political, to explain how health claims came to be governed the way they are. Rather than causes, I understand cultural politics to be about constraints and limits to what is possible, in a similar way to what Foucault called discourse (Foucault, 1971, 2002 [1969]). What I have tried to show is that there are constraints, specific to the liberal market economy of the EU, to how food becomes a commodity on that market; and to what can and cannot be said about food. I have tried to show how the fabric of EU Common Market shapes the ways in which food and health can or cannot become the objects of a political and juridical problematization.

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The Trouble with Bodies Observing and analysing a process of referential displacement doesn’t yet answer the question why this happens in the first place. Health claims have led to the establishment of a premarket authorization procedure in a domain that is not concerned with food safety but ‘only’ with information. A premarket procedure was established to prevent misleading information on the market—an issue usually left to forms and practices of postmarket control. Why establish such a degree of control over health claims, including the precise wording of a statement? Why is there more leeway in terms of advertising messages for so many other products, including cosmetics which perhaps come closest to health claims in the aesthetic and ‘healthy’ relations they promote with regards to the body? Circumstantial explanations might point out that the Claims Regulation, and the EFSA, were established in the aftermath of the BSE food contamination scandal, and the subsequent loss of credibility in the European Institutions and scientific judgement. This book advances another way of understanding the regulation of health claims—a hypothesis that is in a sense more obvious but also more fundamental and complex: when the concept of health is added to food legislation, one can no longer ignore that consumers have a body. Food legislation, as it developed in the EU, is not equipped to deal with that. In addition, one can no longer ignore that food itself has, in a sense, a body as well: food, and processed food in particular, is a complex biochemical entity composed of many things. The issue of food composition has been relegated to food labels and information politics. Food legislation, as we have seen in detail, is based on the provision of information to consumers as rational decision-makers on the market. Before health claims, the principle of mutual recognition between Member States from EU jurisprudence had avoided a host of potential legal issues and trade barriers among Member States on the basis of food composition (remember the chocolate debates) but references to health in health claims brought back the question of composition. Next there is the consumer’s body. Traditional liberal political anthropology divides human beings according to which part can enter into the politics of the polis and which part cannot: rational minds steered by an active and conscious free will can enter into politics, but bodies—obeying to their own mechanics and obscuring the mind—cannot. The concept of freedom itself runs along the same divide: being free means being free of the body and all of which mobilizes the body in society: labour, cooking,

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play, sex, … all practices confined to strictly regulated spaces and rules of behaviour (see Mol, 2008, 2021). Leaving health claims without a centralized verification by EFSA in a premarket approval would have undermined this liberal version of ‘freedom’, tied to rational decision-making on the basis of factual information, because we know very well from the history of medicine and drugs that bodies are unpredictable. You cannot claim anything about how a body will respond to food without testing the claim. Yet, again, the reason that these claims are tested has little to do with public health concerns. The reasons, I have argued in this book, are deeply rooted in the idea of how a liberal market economy, with information and individual decision as its cornerstone, is supposed to function. And this idea cannot be considered separately from the moral dispositions that have historically shaped how we think about scientific objectivity. The conception of valid, factual knowledge and objectivity emerged in the seventeenth century within a particular moral economy based on the detachment of one’s body in order to judge; a form of self-containment dependent on the will (Daston, 1995). This faculty and capability was considered beyond the reach of common folk and women, precisely because they were considered too implicated with their bodies (Haraway, 1988, 1997; Valverde, 1997). Taking into account the legacy of this particular cultural politics in the analysis of health claims sheds another light on the discussions and hesitations concerning the figure of the consumer and the liberal problem of state intervention in food legislation. More than ever, the problem of the consumer’s profile emerges as a juridical problem: who is the consumer? Is it a rational being? Might the consumer undermine an economy based on the making of rational choices? Again, we are not talking about actual people who buy food but about the consumer as a technical category for lawyers. How can the consumer be enlightened, and perform its function as a rational recipient of information, if the information refers to something unpredictable like the body? If clinical trials may to some extent verify claims statistically (though we have discussed problems with that too), then the consumer must still choose individually and consider the pertinence of the information for his/her own body, taking into account the composition of the food bearing the claim, and one’s personal diet. Food with health claims threatens to destabilize information and the figure of the consumer. Whatever system is devised to objectify them, health claims bring onto the political scene the workings of the body. For information to be considered truthful, the body can no longer be put aside in a ‘situation of choice’ (Mol, 2008) because

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the claim itself refers to the constitutive outside of that situation. For claims considered as mere promotional tools and a voluntary form of information, less restrictive procedures such as postmarket control might have been conceivable, but the regulation in place shows precisely that health claims are not considered as just any kind of information. It is information that, in order to be possible, must take into account the way in which pharmaceuticals include the human body in their regime of production and scientific validity. At the same time, disease and clinical symptoms must be kept at bay for juridical, commercial, and political reasons. Let us now resume what relates medicinal claims to health claims and how the sectoral division between drugs and food is rooted in the human body— how both the market and the State are constrained by a specific articulation with the body.

Fragile Divisions and the Charlatan Nation States have traditionally watched over the health of their populations (Foucault, 2004; Kamminga & Cunningham, 1995) to maintain a labour force and a strong army. Medicine has constituted itself as a profession in relation to the State (Foucault, 2001; Freidson, 1988). Today, the European Medicines Agency controls the premarket approval of pharmaceuticals, and the pharmaceutical industry occupies a strong position within this European arrangement (Hauray, 2006). The sectoral division between food and drugs, now on a European scale, already existed within nation states before. The division has historically grown. In that sense, if health claims on food pose a threat to sectoral boundaries (Bourlioux, 2008), this threat also has a deeper level because these boundaries are the result of a long history that created these divisions of substances, sectors, and authority. My argument is that this history is at stake because its divisions are fragile. And this fragility is rooted in an ontological uncertainty about therapeutics that relate substances to the human body. We don’t know all that bodies are capable of. One need only to consider the particularity of what has come to be the Gold Standard of scientific medicine, so much contested by nutritionists: the RCT.  This experimental design is particular in that it makes the unknowns of the human body part of the trial that became the gold standard. This consideration of the RCT doesn’t question drugs’ efficacy, but only the reasons for their efficacy: we don’t fully know these reasons (hence the long list of possible side effects, and the regular retreat of drugs from the market because of their

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unforeseen interactions with human bodies outside of the clinical trial regime). These reasons are an opaque space where medicine lives under the constant threat of losing its modernity. This is the space where healers, magical potions, and sorcerers dwell. These have been consistently called ‘charlatans’ by modern medicine, and the RCT has been designed to keep them at bay. This makes the RCT not only an experimental space, but also a political space that sets the terms of the debate between scientific medicine and other forms of therapeutics. However, the construction is fragile: medicine, in the words of Tobie Nathan and Isabelle Stengers, is haunted by the charlatan (Nathan & Stengers, 2018). This, as they note, is not the case for all scientific disciplines. The astronomer is not worried about the astrologer, and the chemist is not too anxious about alchemy, because the astrologer and the alchemist can be assigned a place in the history of a discipline. Within modern scientific medicine, the charlatan is constantly present at the very heart of the trial that made medicine scientific and modern. The charlatan is the constitutive outside of scientific medicine, in a way that is very similar to how both the body and food are the constitutive outsides of the ‘rational consumer’ as a figure that expresses liberalism’s pocket philosophy of free choice. It is important to emphasize that ‘constitutive outside’ does not mean that which simply falls out of the scope of food legislation and its associated information politics. The term ‘constitutive’ means that the outside is that against which the political framework has defined itself; that what needed to be excluded for the politics to become possible. In that sense, the outside is not an absence but a presence, like the charlatan in RCT trials, at the heart of the juridical-political fabric. It indicates the limit of liberalism’s old philosophical—and contemporary political—‘anthropology’. Evidence-based stratagems are called upon to keep intact the edifice of fact in the clinical realm, and the edifice of information on the market, respectively. Health claims have challenged the sectoral separation of those edifices. EFSA had to apply a type of assessment that seemed logical from the point of view of ‘fact’ (clinical evidence is required) but that was, and still is, challenging with respect to the market’s sectoral divisions (clinical evidence can only concern the improvement of ‘health’ or the reduction of a disease risk factor). The water case in the introduction to this book, but many other cases too, show the conceptual choreographies deployed for something to be considered as a risk factor, or a measure of disease; a symptom of disease; an indicator of health. We can now understand

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EFSA’s mission in a more precise manner: they are charged to assess health claims, for sure, but also to protect the limits of the space in which health claims emerged as a problem.

The Middle of the Maze Markers and risk factors index the probability of a state that counts as better health—a statistically supported assumption where the statistics rely on how health and risk factors are defined. The body’s role, in other words, is to point to a clinical endpoint without direct participation in that endpoint. The body does not participate because the endpoint is a consensus, based on literature reviews, at the final discretion of EFSA. Health claims signal a version of health without responding bodies. Corporate nutrition scientists from the ILSI community and the EBN movement dreamed of a stratagem that could not be jeopardized by responding bodies. The dream did not entirely come true because the body is a troublemaker and cannot be entirely factored out, even though it can be put at some distance with markers and mechanistic hypotheses. The visual grammar of the health claim would be a maze or labyrinth. As already mentioned, Jean-Pierre Mourey (1994) studied labyrinths in twentieth-century art. Drawing on Deleuze, he distinguishes what he calls the ‘labyrinthe-stragème’, which has a clear objective and traces a way to it. To approach health while avoiding bodies, claim technicians and policymakers, each for their own reasons, needed to trace a way to this ideal of ‘health’ through detours, meanders, mediations. The health claim is like a labyrinth or maze, turning round in technical formulations and wordings. Food composition and human bodies are constitutive outsides and present/absent referents. According to Alfred Gell’s anthropological theory of art, labyrinths, mazes, and other pictorial forms or material objects are indexes that do more than simply represent. A maze is designed to draw in, capture, and impress the beholder (Gell, 1998), like a food label that captures the attention and affect of a buyer in the supermarket: an amazing effect. Many supermarkets and warehouses themselves are organized as a maze, with a set itinerary to follow. Is there something in the middle of the maze? Are not health claims misleading by nature, even if a regime of evidence exists that makes them technically ‘true’? The production of information through referential displacement and indexes throws a different light on what ‘misleading’ might mean. Truth or veracity are never alluded to in legislation, what matters is that information is ‘not

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misleading’—in the negative. What is the positive correlate of this? As health claims make no genuine reference but encourage inference, the burden of truth would seem to be transferred to the reader of the message. It seems that the less a body participates in defining concrete clinical endpoints, the more that consumers are required to participate in realizing the promise of the health claim, as can be seen in many advertisements and in recommendations for a ‘healthy lifestyle’. Similar to Joe Dumit’s analysis (2012), people are expected to take responsibility and control of their individual health through constant surveillance and the making of healthy food choices. Like drugs, food ingredients go through a socialization process in order to be fit for the market. For both drugs and food, this socialization process does not end with the clinical trial, as the efficacy of drugs and food requires adherence to the regime in which a drug should be taken (e.g. three times a day for one week). The difference is that the adherence required for health claims has no limit, because there is no clear endpoint to be met. Dumit (2012) shows that this is also, and increasingly, the case for drugs that play upon risk factors, and that have to be taken chronically in order to prevent, instead of punctually in order to cure. Likewise, food with health claims must be part of a healthy lifestyle and this can be extended both in time and across products and activities ad infinitum without ever reaching what claim technicians call ‘optimal health’. Does this mean we cannot expect anything from food? No, it means that we cannot expect anything from health claims. Health claims suggest bodies but take little risk to confront them. They focus on nutrients and take food out of the complexities of metabolism and diet. ‘Let food be your medicine and medicine your food’: it is a false symmetry, and only the second part—medicine as food—seems to correspond to a growing trend in the realm of pharmaceutics, as Dumit has shown. The first part—food as medicine—is possible too, but in particular circumstances (Hendrickx & Dooms, 2021). It is possible within a community of medical practitioners and in specific contexts of patient care, not consumer choice. Some ingredients and food supplements are known to have curative properties in very specific situations such as rare metabolic disorders. In the practice of medicinal compounding in the specific setting of hospitals and individual patient care, food can really become medicine. On the EU market, food cannot become medicine. Some say that health claims are a case of the medicalization of food. Yet, caution needs to be taken in how one conceives of ‘medicalisation’. While the appearance of risk factors and indirect references to disease

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might seem to indicate a phenomenon of ‘medicalisation’, such an observation does not take into account the work that is needed for something to become a medical object, nor the work that needs to be done to prevent food from becoming one. Health claims have involved redefining health, disease, and bodies within the constraints of the EU’s juridical-political fabric. If medicalization means the extension of medicine’s jurisdiction to other domains of life, then health claims show the exact opposite: pushing that jurisdiction away from food, for ‘evidence-based nutritionists’ to claim a space of intervention of their own. The concept of ‘medicalization’ is not as straightforward as we might think, and this study offers ways to fine-tune the study of contemporary forms of medicalization: medical and pathology-based thought can spread throughout different segments of the market not by crossing or taking away existing boundaries, but by creating new ones. The debates on scientific evidence at the Royal Academy in Chap. 7 involved not only the socialization process of food ingredients in stratagems of evidence, but the socialization of scientists as well in their trajectories across political and entrepreneurial landscapes. While EFSA does not apply actual evidence-based medicine because food may not be said to cure, treat, or prevent disease, they do apply a hierarchy of evidence which changes how the provenance of scientists and the CV of food components are valued. We have seen conceptions of good science and bad science mirror the institutional affiliations of scientists; and that the evidence-bases of EBN and EFSA respectively mirror the socialization of their proponents. I have argued that this particular moral economy, different from the one of seventeenth-century gentlemen in the way persons and things can be addressed respectively, prompts one to consider food production, consumption, and scientific evidence together in the making of metabolic territories, with sugar as a paradigmatic example. Sugar, as I announced in Chap. 2, grounds the story of health claims chronologically and genealogically.

Tipping Point Cultural politics, discourse, problem space, moral economy and space of mobilization are concepts that I have used throughout this book because they helped emphasizing, as a heuristic or as a working concept, a particular issue in the trajectory that we have followed in the constitution of the health claim as an object of government. These concepts all have in

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common that they articulate historical contingency with certain limits to what is politically possible at a given moment: a certain distribution of what can be included or excluded in the polis and on the market. This distribution, I have tried to show, is historically contingent indeed but it is not random. The distribution, or the discursive formation if you will, is a contingent answer to agencies that relate to our very conditions of existence: the human body and metabolism. The extent to which this indeed poses a problem, and the shape of that problem, is arguably what defines discourse itself in the Foucauldian sense, but in this final chapter I am trying to highlight the pragmatic importance of insisting on the body, and metabolism, as realities that pose their own constraints on the possible articulations with knowledge and politics. Max Weber famously stated, that ‘man is an animal suspended in webs of significance he himself has spun’. We spin webs of significance for sure, but they are interlaced and woven into the real, affecting the real, generative of the real and challenged by the real. We are not ‘suspended’ in our webs of significance but partaking in an ongoing experimentation with the real. This is why I wanted to ground the story of health claims in the history of sugar production—a history that has changed patterns of production and consumption, food composition, and our metabolic bodies (Moran-Thomas, 2019). The boundary between food and drugs hinges on the ways we devise to harness metabolism according to the requirements of evidence. Metabolism itself makes boundaries porous between bodies and their environment, challenging our conceptions of knowing, being, and politics (Mol, 2021). Metabolism is also thoroughly historical (Landecker, 2013) and geographical (Solomon, 2016; Moran-Thomas, 2019). The human body, as an organism, can be considered with Deleuze and Guattari (1987) as a process of becoming (devenir). The term ‘becoming’ does not so much indicate that a body changes over time, but that it depends on other things, such as food, for its own transformative constitution through metabolism. Metabolism can be considered as a form of deterritorialization: a becoming-different, however slightly and temporarily, through something else. Bodies, in that sense, are entities of constant ‘micro-deterritorialization’ kept stable by habit, dietary patterns, and the politics of nutrition. Over time, however, those patterns may durably change the body. Public health policy and market strategies to promote healthy products turn such dietary patterns into an individual problem: people must choose a healthy diet. This approach fails, or refuses, to

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recognize metabolism as an ecological process determined by food production and distribution, market, law, policymaking, and the body’s own agency, in many ways still poorly understood. Functional food science is a marketing strategy to promote better health without taking the risk of addressing the complexities of metabolism. For claim technicians and evidence-­based policymaking, bodies are troublemakers, and metabolism, taken seriously, poses disturbing questions. Health claims as we know them today are about as far as one can go without addressing those questions. They signal the limits of a problem space—limits that are, in the end, less about the boundary between food and medicine, than about a tipping point of sorts where bodies become politically subversive. What is there to be discovered at the other side of that tipping point? The possibility of approaches to nutrition that might address ecology, dignity, and another version of freedom than that promoted by the market? A more interesting and hesitant science of nutrition that articulates differently with politics than through the promise of an evidence-base? The health claims debates are saturated with references to, and an indistinctive use of, the concepts of ‘science’ and ‘evidence(-base)’. Confounding regulatory practice with scientific practice, by placing everything under the banner of ‘science’, implies a de-politicization of questions that might merit more and broader discussion. Distinguishing regulatory practice from scientific experiment, (re-)introduces the possibility of democratic debate concerning food and health; and the kind of food production system we want. Hippocrates’ adage—let food be your medicine and medicine your food— should perhaps not be read as an evident imperative but as a speculative proposition. It is a societal, political, and ecological question and not merely a matter of inventing new products along with their benefits.

References Barry, A. (2013). Material Politics: Disputes Along the Pipeline. Wiley-Blackwell. Bourlioux, P. (2008). Aliments, allégations santé et médicaments. Introduction: Pourquoi une séance consacrée à ce thème? Annales Pharmaceutiques Françaises, 55(5–6), 1–3. Butler, J. (1993). Bodies that Matter. Routledge. Daston, L. (1995). The Moral Economy of Science. Osiris, 10, 3–24. Deleuze, G., & Guattari, F. (1987). A Thousand Plateaus. Capitalism and Schizophrenia. University of Minnesota Press.

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Dumit, J. (2012). Drugs for Life. How Pharmaceutical Companies Define our Health. Duke University Press. Foucault, M. (1971). L’ordre du discours. Gallimard. Foucault, M. (2001). ‘La naissance de la médecine sociale’ in Dits et écrits II, 1976–1988 (pp. 207–228). Quarto Gallimard. Foucault, M. (2002 [1969]) The Archaeology of Knowledge. Routledge. Foucault, M. (2004). Naissance de la Biopolitique. Cours au Collège de France 1978–1979. Seuil/Gallimard. Freidson, E. (1988). Profession of Medicine: A Study of the Sociology of Applied Knowledge. University of Chicago Press. Gell, A. (1998). Art and Agency. An Anthropological Theory. Oxford University Press. Haraway, D. (1988). Situated Knowledges: The Science Question in Feminism and the Privilege of Partial Perspective’. Feminist Studies, 14(3), 575–599. Haraway, D. (1997). Modest_Witness@Second_Millenium. Femaleman©_Meets_ Oncomouse. Routledge. Hauray, B. (2006). L’Europe du médicament. Politique, Expertise, Intérêts pivés. Science Po. Health Claims Regulation. (2006). Regulation (EC) No1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods. OJ L 404/9. Heller, J. (1961). Catch-22. Simon & Schuster. Hendrickx, K., & Dooms, M. (2021). Orphan Drugs, Compounded Medication and Pharmaceutical Commons. Frontiers in Pharmacology, 12, 738458. Kamminga, H., & Cunningham, A. (Eds.). (1995). The Science and Culture of Nutrition, 1840–1940. Rodopi. Landecker, H. (2013). Postindustrial Metabolism: Fat Knowledge. Public Culture, 25(3), 495–522. Mol, A. (2008). The Logic of Care. Health and the Problem of Patient Choice. Routledge. Mol, A. (2021). Eating in Theory. Duke University Press. Moran-Thomas, A. (2019). Travelling with Sugar. Chronicles of a Global Epidemic. University of California Press. Nathan, T., & Stengers, I. (2018). Doctors and Healers. Polity Press. Solomon, H. (2016). Metabolic Living. Food, Fat and the Absorption of Illness in India. Duke University Press. Valverde, M. (1997). ‘Slavery from Within’: The Invention of Alcoholism and the Question of Free Will. Social History, 22(3), 251–268.

 Afterword: Of Charlatans and Crooks Isabelle Stengers

Kim Hendrickx’s Health Without Bodies is a superb example of what the ‘coming of age’ of the STS field may mean, that is, how fruitfully the problems the field formulates can cross their disciplinary boundary and encounter other matters of concern without having a fear of losing their specific relevance. The fact that I, as a philosopher following distinct methods of problematization, am writing this afterword, is a testimony to the inspiring character of this encounter. Every addition or inflection I will propose in the following pages has been directly inspired by my reading of Health Without Bodies. They are of the order of as many ‘yes! and …’ generated by what I learned from Kim Hendrickx’s approach. The possibility of crossing disciplinary boundaries marks the difference between ‘problems’ and ‘case studies’. Case studies can be the arena for disciplinary controversy. They are testing grounds for the tools of the discipline. If we remember the first cases which marked the STS field, the cases presented by the ‘British school’, they aimed to confront science’s claims to objectivity for whatever phenomenon it addresses—be it what astronomers observe in the sky, what chemists or biologists manipulate in their lab or what physicians or psychologists deal with when consulted. In the STS field’s own rendering of these cases, what science calls objectivity would not signify the power obtained by a successful scientific investigation to impose itself beyond human, all too subjective, diverging interpretations, but express the fact that those professionals we call scientists have © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2023 K. Hendrickx, Health Without Bodies, Health, Technology and Society, https://doi.org/10.1007/978-981-99-4950-2

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successfully obtained among themselves and imposed on others a stable agreement about what counts as objective, using all the social means they can mobilize. In order to be convincing, the case studies must concern successes unanimously recognized as belonging to the great story of ‘scientific progress’. ‘Dubious’ scientific claims such as those associated with a ‘health science’ would have been ignored as ‘too easy’. This youthful polemical ambition of STS, its adherence to the classical storytelling according to which a new science begins by successfully confronting the claims of an ‘illegitimate’ occupant of the field it aims at appropriating, has contributed to cutting it off from the concerns of scientists and other protagonists concerned by the misuse of scientific objectivity. For instance, IQ tests for the ‘objective’ measure of intelligence were the object of protests both as a case of ‘bad science’ and as involving science in socially unfair and discriminatory politics. Testing was criticized by scientists as presupposing that what we call ‘intelligence’ can be objectively defined but also because of the bias of the test, and the way the results anticipate the kind of competence already privileged at school, allowing to ‘objectively’ explain the success or failure of individual students in completing their school curriculum. But STS did not provide support to these critiques. In 1996, Hilary Rose remembered the painful and politically catastrophic attitude of STS researchers who would deride the idea that a distinction could be drawn between ‘good’ and ‘bad’ sciences.1 Their critique of the authority of science admitted no such difference. It may well be that the development of climate denialism and other operations producing and marketing doubt have brutally quashed this polemic’s early ambition. It has for instance confirmed the need heralded by Bruno Latour and the ‘Paris school’ to take seriously the scientists’ own concern for instituting effective articulations between scientific propositions and the nonhumans concerned by these propositions. ‘Coming of age’ does not just mean getting back into line, appealing to consensual criteria to defend honest, reliable knowledge against its enemies. It may also mean, as Bruno Latour proposed, learning how to speak 1  See ‘My Enemy’s Enemy Is, Only Perhaps, My Friend’. Social Text (1996) 46/47 61–80, reprinted in Andrew Ross (ed.) Science Wars, Durham NC: Duke University Press, 1996. See also Stephen J. Gould The Mismeasure of Man, New York: WW Norton and Comp., 1981, as well as his defence of the need to recognize that the closure of some controversies cannot be reduced to a successfully negotiated treaty but acknowledged as a ‘victory of knowledge’, see: ‘The Power of Narrative’, in An Urchin in the Storm, Penguin Books, 1990.

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well about sciences in order to craft the appropriate questions called for by concrete problematic situations in which they are involved. For him, social studies should never use such situations in order to bring down an idol, but to learn through their concrete particularity what they tell us about the world which they both presuppose and require. Kim Hendrickx would have no problem in making a difference between scientific practices and IQ measurement. Following Latour and myself, he associates scientific practices with risk. No great confrontation between explanations of a scientific success in terms of ‘nature’ or ‘society’. Taking seriously the concerns of scientific practitioners when opposed in a controversy, implies admitting that they all agree on one point: the object under study is to be granted the power to redefine the questions addressed to it. And here we meet the concern of scientists not entering into controversy about the bias of the IQ test, but protesting against the ‘objective definition’ of intelligence through such testing procedures: they protested because those very procedures prevented them from granting this power to intelligence as an object under study. What does the world require and presuppose in order that sciences should enable us to objectively define what we call ‘intelligence’? How to understand that what we call science may allow for a culture of risky questions but may also perversely promote scientific objectivity as both a right and a duty, justifying the elimination of what threatens its implementation? How to articulate sciences which honour competent objections, and others where the argument ‘if we took this objection into account, no science would be possible!’ is a final one, relegating the objection to the status of the bark of dogs which will not prevent the caravan from moving on? Even if the prospect of an ‘objective’ definition of health is an active ingredient in the story told by Kim Hendrickx, he made the choice not to ‘bark’ but to stick with the peculiarity of the world which requires that health be scientifically defined for itself, that is not as opposed to disease even if it may be correlated with the reduction of disease risks. This world is the complicated one of the European institutions and more precisely of the ongoing fabrication of a European common market, and also that of the numerous private interests that are buzzing around the European Headquarters. But no ‘science’ is produced in these intermingling worlds. As the strange case of water preventing a risk of dehydration shows in this book, it may even happen that proposed objective definitions are not

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evaluated by competent colleagues but by a tribunal. An outside arbitrator is thus entitled to evaluate claims that present themselves as scientific. Kim Hendrickx has made the choice to take what is happening there as worthy of study for its own sake, to learn from this situation where the authority of science is no longer at the centre, where what is at stake are not controversial or objectionable scientific claims, but ‘stratagem’ propositions concocted by ‘claim technicians’. In doing that he has chosen not to propose another STS case study but to address a situation which may be a matter of concern and interest outside the STS discipline. It may interest scientists wondering about the changing landscape which situates their work, and many other protagonists who are grappling with EFSA advice or its definition of sound science. And it interests me as a philosopher for whom the authority claimed by, or attributed to, science puts into question the very meaning of what we call science. My own concern is thus not to defend epistemology, that is the attempt to define sciences as a source of ‘valid’ objective knowledge, but rather to unlearn the link between science and epistemology in order to address as a problem what we call science. To address science as a problem is to affirm that ‘another science’ could have been, and maybe could still, be possible. As Spinoza would say, we do not know what this enterprise we call science might have been capable of if…. The ‘if ’ is what matters to me. How to tell stories that take into account how the possibility of another science was buried? How to tell stories that activate a ‘might have been’? And it is here that the perspective proposed by Kim Hendrickx, to characterize the ambition of a ‘health science’ as that of addressing ‘health without bodies’, gives food to my question. ‘Without bodies’ means that bodies are defined as unable to complicate or invalidate the question of what a healthy body is. This is a way of activating my Spinozist ‘if’: what would this enterprise we call science be, if the obligation to address only that which has the power to complicate or invalidate the manner of this address, had prevailed for all scientific practices? From this obligation follows a second, correlate one: the obligation to detect and reject any manoeuvre that would force, presuppose, or induce compliance, or give to the scientist the right of judging the answers obtained by its questions. For experimental practices this double obligation is indeed the requisite for what they call proof, or for what differentiates a ‘fact’ from an artefact. Experimental practitioners know very well that being able to claim they

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are authorized by what they address to ‘speak in its name’ is an event—not the fulfilment of a right. They are indifferent to epistemological norms or ‘deep’ philosophical questions. They do not wonder about the knowable character of reality. What matters to them, what obliges them, is that partial, always situated, new connections may eventually be created and transform their ways of addressing what they have connected with. Writing about sciences related to bodies and their metabolism, Kim Hendrickx gives us a way to characterize scientific practices whose obligation would be to create such connections, enabling them to learn from what they address, and not the obligation to ‘prove’. The events fulfilling this obligation would communicate with what he calls ‘deterritorializing’ encounters, encounters inducing a mutually transformative relation between all the terms concerned. In Bruno Latour’s famous example in Pandora’s hope, neither Pasteur nor the ferments are the same after Pasteur claimed that ferments are living beings. That connections demand deterritorialization in order to learn is something we also meet at the other end of the spectrum of scientific practices, when contemporary anthropologists like Viveiros de Castro associate their field with the challenge of a ‘decolonizing’ of thought. But ‘another science’ should not mean a disinterested quest, a stranger to ‘mundane’ concerns. And here we meet the other point of Kim Hendrickx’s proposition: the ‘reterritorialization’ process that stabilizes and standardizes the connection or, as I propose in Virgin Mary and the Neutrino, domesticates what has been connected, makes it part of our domus, however partially.2 Domesticating reterritorialization is seen by experimenters as a legitimate consequence of their successes but it would be a failure for a ‘decolonizing’ anthropology. In all cases it relates scientific practices with all those who are interested in the many possibilities offered by the connection they create. For instance, the new therapeutic means to which Pasteur’s name is associated has led to the generalized use of antibiotics and the neglect of the capacity of bacteria to escape their stabilized definition. The bacteria are counter-attacking, having now gained the capacity to develop resistances at a speed which challenges the pharmaceutical industry. The tourism industry keenly exploits the interest in ritual and shamanic practices that are no longer considered superstitious 2  Isabelle Stengers, Virgin Mary and the Neutrino. Reality in Trouble. Durham and London: Duke University Press, 2023.

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beliefs but that may well become ‘re-territorialized’ into a source of the spiritual ‘supplement’ their customers yearn for. What I called ‘another’ possible science would be neither innocent nor guilty. As Donna Haraway emphasizes, the general default position is non-innocence—learning how to become response-able. Coming back to the story of what is now called science, I was not surprised to meet the crucial importance of a particular practice in Kim Hendrickx’s story, namely that of the randomized controlled trial (RCT). In his narrative the RCT intervenes as what ILSI’s stratagems meant to avoid and as what would have given a role, however restricted, to the body. But I would like to propose another slightly different version, which makes full use of the ‘constitutive outside’ concept Kim Hendrickx introduces—the deterritorializing body as associated with the haunting figure of the charlatan. I will tentatively add the possibility of an additional constitutive outside, distinct from the first because it is haunted by the figure of the crook. The concept of a constitutive outside might characterize sciences which aim at authority, not connection, at territorialization, not deterritorializing encounters. It thus intervenes in my story as characterizing a moral economy which associates science with a duty and right to provide ‘objective definitions’. They are not situated by what they succeed in learning but by what they succeed in keeping outside. And the RCT protocol indeed finds its prefiguration in the first explicit invention of something which looks like a scientific practice while inventing a new kind of staging, the success of which is not defined by the creation of a new connection but by the capacity to dismiss a possible connection. This staging was invented in order to serve the interest of public order. Public order was indeed at stake in 1784, when experimental scientists were part of a committee asked to report on a practice which claimed spectacular therapeutic effects, but also produced scandalous ones—unseemly swoons or convulsions affecting the body of respectable ladies. The physician Mesmer attributed these effects to his ‘magnetic fluid’. Scientists in the committee quickly understood that they had to turn their back on these effects, therapeutic or else, which were hard to deny but too entangled and uncontrollable. It was possible, however, to test their link with the fluid which, Mesmer claimed, explained them. They staged situations demanding that the fluid demonstrate its ‘objective’ existence by producing effects on people who were unaware they were

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‘magnetized’ or were made to believe they were not. They concluded that without imagination the fluid has no effects while imagination can produce effects attributed to the fluid. The binary alternative their staging created is obviously asymmetric, as they did not try to define this imagination, charged with the responsibility of the healing effects which indeed happened in Mesmerian ‘magnetic’ cures. What matters to me is that, at the time, their argument was not sufficient to close the case. The stratagem used in order to gear attention towards a binary alternative convinced only those who wanted to be convinced. But others asked: what if the fluid needed imagination in order to produce healing effects? What if, in fact, people who did not know they were magnetized, resisted what they experienced instead of giving in to the transformation the fluid induced? That the case was not closed means that the idea that ‘science’ should be able to make the distinction between legitimate claims on the one hand, and the claims which bodies allow charlatans to present on the other, was not yet a part of the moral economy of the time. But the judgement against magnetic cures designates a bifurcation point: for the first time renowned scientists put their craft at the service of public order and turned it against ‘irrational beliefs’. This is why the historian Robert Darnton characterizes this episode as the parting of ways of science and the Enlightenment.3 Nothing will ever be able to reconcile the adventurous reason of a Diderot and the judgemental critique of a Kant. Today, the task of pharmaceutical RCT procedures is to authenticate rather than to disqualify what is tested, but their strategy is still grounded on a binary alternative. The verdict determines not only the fate of the tested molecules but also of the research which defined them as promising enough to face the (very expensive) staged alternative: will they be dismissed or become a success story reterritorialized in scientific terms: ‘again scientific research has produced a new efficient drug’. Kim Hendrickx, in order to accentuate the contrast with health claims, emphasizes that the ‘clinical’ encounter staged by RCT protocols between the molecule and the body is nevertheless a risky encounter where, in principle, the body has the final word. He is right of course but I would emphasize that this final word is answering a deliberately bad question. The body which answers is  Robert Darnton, Mesmerism and the End of the Enlightenment in France, Cambridge, Mass.: Harvard University Press, 1968. 3

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a body that is defined as unable to make the distinction that matters in the encounter: the distinction between transformations induced by the molecule and by what is now called the ‘placebo effect’. The decision relies on statistical measurements, which are themselves blind to the difference they have to identify. The ‘evidence’ allows to claim that the molecule somehow played a role in the measured favourable therapeutic effect. As a result, there is a cut separating the scientific research which led to the definition of the molecule as deserving of being tested and the final verdict. If the verdict says that the molecule played a role indeed, it is mute about a body’s contribution to that role, and what a body may be capable of. Our scientific understanding of this role is only a reterritorialization in biochemical terms of an eminently partial de facto success. Coming back to Kim Hendrickx’s account, I would say that, in a way, we can acknowledge the protest of the defenders of a future ‘health science’ against the fatal decision of EFSA to privilege RCTs as a means to legitimize the claims of functional food. The RCT, focusing on the evidence associated with clinical endpoints, may indeed appear as a ‘rough and clumsy tool’ which is unable to approach the complexity of what we call health; the subtle ongoing, endless, interaction of the body and its milieu, and the nutrients it metabolizes. However, acknowledging the protest does not mean that we have to accept what follows: the prospect of a new science which will relegate the ‘crude’ definition of health defined as the absence of clinical symptoms to an outdated past. What follows has been concocted by ‘claim technicians’. The promise of a ‘new science’ is a lure which the EFSA experts resisted without denouncing it explicitly, probably because to publicize it would create unwelcome attention to the very common usage of such a lure in scientific propaganda. What if the offence of deceptive or misleading advertisement against which consumers must be protected was extended to the way scientists advertise their research as groundbreaking, as opening a new frontier to the advancement of knowledge? It is here that I would like to tentatively make a difference between two negative figures who haunt the threatening outside against which claims are territorialized: the ‘charlatan’ and the ‘crook’: charlatans may be honest while crooks are most definitely not. It is important to recall that ‘charlatan’ is a modern qualifier. From the point of view of evidence-based medicine, all physicians were ‘charlatans’ before the advent of the RCT: victims of the capacity of bodies to turn a reckless array of interventions into ways of healing. Mesmer, however, is

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the first ‘true’ charlatan because he presented the fact of successful healings as ‘scientific proof’ for a cure. This does not mean that those successes are not true ones. The RCT protocol privileges cures obtained in a purified setting, but this purification does not exclude the placebo effect. It only allows to state that the observed effects are not statistically reducible to placebo. And, more importantly, it is unable by definition to take into account the art of healers when they are able to turn a sick body into an active partner in the thick deterritorializing choreography they know how to organize. Placebo is just a word covering a wilful ignorance. As for crooks, the first qualifier is that they know they are crooks, and that their success requires that their victims are vulnerable to false or misleading ‘information’. Crooks also organize deterritorializing choreographies but their choreography is based on an asymmetry between those who lure and those who are lured. Crooks have to protect themselves against their own lures. They might be described as artfully taking advantage of the potential gullibility of their preys (consumers who are willing, for instance, to buy overpriced food promoted through health claims). In Virgin Mary and the Neutrino, I situate the practice invented to negate the existence of Mesmer’s magnetic fluid in the lineage of the mediaeval testators who, in the service of a Prince, tested the gold that alchemists would present to the Prince who paid them. Those testators are part of the history of chemistry through their invention of effective means to distinguish between false and true gold. This should not mean that the alchemists were crooks: the distinction between false and true gold is part of the history which generated the possibility of a reliable positive definition of ‘true’ gold. The modern testators may dream of a rational medicine able to positively generate an effective definition of a ‘true healing’ but the RCT protocols in no way permit to explain away what they call ‘placebo effects’ in terms of ‘gullibility’. It rather emphasizes that today’s ‘princes’ do not care about reliable positive definitions but about criteria allowing a stable assignation of value: their alchemic gold must be able to circulate as the usual one; a molecule must be tested in order to be authorized on the drug market. It would be a grave mistake to assimilate the two arts which put modern testators into action, that of the charlatan and that of the crook, because that would deny the difference between what addresses the body as able to enter into a new partnership and what addresses it as a potential prey. It may be said however that this assimilation refers to the fact that both arts

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suppose and mobilize the fact that sentient and imaginative bodies4 can be lured. Both can be characterized as putting into action artful ways of luring, which escapes intrinsic differentiation between ‘good’ and ‘bad’. Where bodies are concerned, to lure and to be lured might rather designate their never neutral, intrinsically hazardous, exploration of their multifold worlds. To explore means to enter into new risky ways of de/ re-territorializing, tasting, testing, experimenting, becoming. Life is dangerous, without warrant, and peoples who have ignored the dream of objective, disinterested knowledge, but cultivated the attention needed to discriminate between devouring attachments and transformative ones, had very good reasons to be frightened by the dangerous foolishness of this dream of weaponizing the so-called objective knowledge against the efficacy of lures. Health Without Bodies shows how the knowledge obtained by RCT protocols implies deliberately debilitated bodies, deprived of the possibility to explore the effects of an artfully choreographed encounter, able only to manifest the unavoidable luring power of the situation (placebo effects). As for the claims invoking a future ‘health science’ they propose to bypass the bodies: ‘markers’ would somehow authorize objective knowledge to identify and anticipate health risks before the body expresses itself through clinically authenticated symptoms. In my perspective, the dramatic event which echoed in March 2012 at a conference at the Royal Netherlands Academy for Arts and Sciences, that is, the decision of the EFSA to ignore the ILSI ‘consensus’ arguments and to give a crucial weight to RCT procedures in the evaluation of health claims, is an event in the story of ‘objective knowledge’ supposedly fulfilling the crucial task of protecting humans against luring operations. But the aim of clinical tests is displaced. It no longer reflects the invention of means to create a difference which the body refuses to make, between the efficacy of ‘naked’ molecules and the efficacy of artful therapeutic interventions. It seems now to politely reflect a measure of distrust against the ILSI ‘consensus’ tale of an advancement of knowledge predicated on getting beyond appearances, that is, here, beyond the definition of health as corresponding to the absence of clinically identified disease symptoms, towards some ‘reality’ empowered to provide its objective definition. 4  Sentient and imaginative bodies do not stand in opposition to ‘rational’, disembodied minds. This opposition is a fiction imagined by philosophers in order to claim a realm where their uprooted abstractions would be self-sufficient.

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The tale of science going beyond appearances is a luring one for scientists as it refers to physics’ discovery of atoms and other microscopic particles beyond what were defined as the objects of classical physics and chemistry. But the lure deserves distrust because it demands to forget that these classical objects were already well-defined and that what was claimed to exist ‘beyond’ them had to confront this definition. In contrast, sentient and imaginative bodies escape ‘objective definition’ and their ‘beyond’ is a matter of free-for-all to guess. In other words, health claims take advantage of an idea of scientific progress as getting access to ‘beyond’ what is clinically tested, but this idea demands forgetting the fact that the test itself is not equipped to have the body authenticate what is able to heal it. This is a conjuring trick, diverting attention from the body’s unpredictability, betting, if not on the gullibility of those it addresses, at least on their routine mistaking of a positive RCT result with a positive validation of the way scientists understand the effect on the body of a tested molecule, that is, with a scientific progress. The proposition that one may be at risk or enjoy an only ‘suboptimal’ health without feeling it might be of interest. But it functions here as part of a remarkable luring operation deliberately inducing a new lucrative demand for ‘functional’ foods. Scientists are facing an undecidable choice between their belief in progress as able to overcome any obstacle, and the suspicion that they might be dealing with crooked pretensions. The nutritionist Katan, who sides with the EFSA, invokes a terrible crisis of confidence in science and it might be understood that it is in order to reassure the public that the clinical test of health claims is needed. But as the confrontation with his colleague Saris shows, the crisis also concerns the confidence among scientists themselves. Katan perfectly understands what Kim Hendrickx has called ILSI stratagems concocted by claim technicians. While the possibility that effective healings might be the work of a charlatan is the constitutive outside of evidence-based medicine, it may be that the choice of EFSA, to privilege clinical trials when health claims are concerned, means that the possibility that these claims might be the work of crooks is the constitutive outside of evidence-based nutrition. Kim Hendrickx emphasizes that the liberal market economy on which the legitimacy of EU governance is predicated correlates the free circulation of goods and the rational choices of consumers who choose what to buy. This however does not prohibit general advertising claims which associate goods with glamour, happiness or whatever attracts consumers. Why then is it prohibited to attract them with the lure of health or the

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reduction of the risk of disease? As Hendrickx notes this question was discussed in the European Parliament and no decisive answer was given. Adding the figure of the crook to that of the charlatan is not such an answer but it might be interesting to hypothesize that our representatives, who consider themselves as rational and able to resist the alluring dreams associated by marketing specialists to the goods put on the market, felt that they themselves might, as consumers, be misled. They themselves needed protection against promises presenting themselves as information authorized by science, advertising the availability of new beneficial products of scientific progress. But information designed to mislead, to present as truthful or as ‘factual’ that which is not, is the work of crooks. The risk of being lured and mistaking a crook for a scientist undermines the very possibility to define the ideal of ‘rational choice’ on the market. My point is not to denounce the promised health science as a corrupted science, which would imply a reference to a pure, disinterested, trustworthy science. Scientific practices cannot be isolated from the ecology of their milieu and from the way they are valorized by their milieu, which is itself multiple and under conflictual tension. Speaking in terms of an ecology of practices implies not reducing scientific practices to a determinist explanation. Ecology is never determinist. It rather problematizes any situation as it does not disentangle the protagonists of a situation from the variety of relationships they entertain with each other. If Health Without Bodies is a testimony for what a coming of age STS is capable of, it is because it does not take valorization as a polite word to socially explain what we call science, but as a matter of concern which situates different protagonists, and may communicate with different moral economies. As I write this afterword, I am myself situated by my question, that of ‘another’ possible science, that is also, of another moral economy which would have demanded that questions be never imposed on what they address in the name of science, objectivity, or rationality, but be valorized if and only if what they address is able, or enabled, to complicate, or contest them. Since what Robert Darnton called the end of the Enlightenment, my position, which privileges the relation between learning and deterritorialization, is a speculative one, but it has consequences: it makes me attentive to the desertified landscape of the ecology Kim Hendrickx characterizes. Healers and their art survive clandestinely and under the threat of an accusation of illegal exercise of medicine, while the cultivated capacity to discriminate between those who use their power to heal or to enslave has been destroyed with testing procedures that lead to ‘proof’ instead of

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learning: patients are now considered as gullible and vulnerable, prone to self-medication, misuse, and addiction. They must be protected against themselves. Kim Hendrickx recalls that originally RCT protocols were motivated by a moral economy which aimed to protect medicine, and thus patients, against commercial interests. They did not need to discriminate between charlatans and crooks since their promoters put their faith in scientific evidence in order to counter drug promotions in the marketplace. In contrast ILSI and the functional food community intend to promote scientific evidence which would allow industry, government, and academia to peacefully agree. In this moral economy, ILSI is quite justified when it suggests to policymakers the right questions, to which industries are ready to answer: questions that will refer to ‘available science’ and not demand specific research which the food industry is neither equipped for nor willing to foster. We should not go too fast and picture the EFSA as sharing the original moral economy of the RCT.  The figuration of the contemporary RCT protocols as scientifically sound ignores the twisting of their original moral aim by big pharmaceutical industries. Such industries have to accept that some unlucky molecules will be the victims of the protocol and be discarded, but they also take advantage of the same protocol as a tool for ‘disease mongering’, marketing new diseases together with molecules which happen to have some effect on what are, from then on, called ‘symptoms’—a ‘discovery’ announced as a medical breakthrough by sympathetic medical big names.5 The EFSA is not against commercial interests intervening in health matters. What its demand excludes are rather commercial protagonists who have neither the means nor the will to pay the price demanded by ‘sound science’. EFSA defends public order, not patients or consumers, and public order needs the possibility to refer to a ‘sound science’. Sound science is not meant to put itself at risk of deterritorializing encounters. It is meant to end discord, and, as such, it should

5  See Tobie Nathan and Isabelle Stengers, Doctors and Healers, Cambridge (UK): Polity Press, 2018.

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not become itself an object of discord.6 Which might have been the case if EFSA had endorsed the kind of ‘information’ proposed by ILSI as based on ‘sound science’. The nutritionist described by Kim Hendrickx as ‘at a loss’, discovering that his facts, even if they are made possible by innovative, sophisticated techniques, were not judged capable of participating in the grounding of health claims, is probably not a crook. But he is a player in the new ‘neo-­ liberal’ economy of knowledge which has the figure of the crook not as its constitutive outside but as what it can no longer keep outside. Knowledge is no longer a partner with its obligations. It has to serve. This means a radically new ecological situation, a new relation between scientific practices and those who valorize their products—a relation that undermines the maintenance of any moral economy scientists may associate with their practice. The new politics of research valorizes groundbreaking innovation over the old myth of disinterested knowledge, and finders of ‘solutions’ over researchers. This new politics aims at activating entrepreneurial scientists, freeing them from ‘outdated’ habits. Instead of being financed on the grounds of collegially recognized results and projects, they are expected to design research which would actively lure the interest of investors or answer public ‘calls for project’ demanding that they pretend to decisively contribute to the solution of great, urgent public problems. In this new ecology, luring and pretending are a condition for success, destroying any moral constraints about what is allowed and what cannot be forgiven. On this new terrain crooks have actually proliferated, most just feeling free to deliberately present fake results and claims, while others lure governmental bodies, industrialists and even speculators with fantastic promises. Who believes whom, follows whom, is captured by the dream of whom? The question in this case is in vain, just as it is in Neverland, where the pirates 6  The judgements of EFSA about the toxicity of pesticides is an example of such a discord. The present-day tests on which the definition of toxicity rely are accused of ignoring contemporary research which brings into light cocktail effects and the effect of weak doses absorbed over long time. But taking into account these effects challenges the very possibility of tests which would be able to close, one way or another, the case after a time short enough not to jeopardize commercial interests, and to attribute the responsibility of eventual toxic effects to a precise pesticide. Here the moral economy of giving to what is addressed the capacity to contest the question it is asked clashes with the demands of ‘sound science’ prioritizing decisive tests. The encounter of the body with molecules, if the ‘how’ of the encounter is made to matter, destabilizes the possibility to assign responsibility, be it to prove or to disprove.

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are chasing Peter Pan and the Lost Children, but are chased by the Indians, who are themselves chased by the wild animals who are being chased by the Lost Children. The promises of a new health science were not fantastic, they just concerned the commercial success of overpriced foods in our supermarkets. This may be why the EFSA felt able to confront these promises with the demand of ‘sound’ science without fearing a backlash. In a way the promoters of the coming health science were right. This approach of the EFSA was reactionary, trying to go back to the moral economy of modern testators. Isabelle Stengers  is Emerita Professor of Philosophy of Science at the Université Libre de Bruxelles, and she has authored or coauthored more than 25 books, including Virgin Mary and the Neutrino: Reality in Trouble (2023), Making Sense in Common: A Reading of Whitehead in Times of Collapse (2023), Another Science Is Possible: A Manifesto for Slow Science (2017), and, with Philippe Pignarre, Capitalist Sorcery: Breaking the Spell (Palgrave Macmillan, 2011).