Food law | UK Regulatory Outlook February 2024

FSA to put forward novel food approval process in March

It has been reported that the Food Standards Agency (FSA) will put forward plans to modernise novel foods approvals at its next meeting on 20 March 2024.

As set out in its update on regulated products, the FSA was proposing to submit a bid for funding from the Department of Science, Innovation and technology to run a regulatory sandbox on cell-cultivated products (cultured meats). At the meeting in March, is it anticipated that the regulator will provide a further update on the progress of this bid.

Businesses should keep on top of any developments with regard to the sandbox, and we will be publishing further details once more information has been provided by the FSA.

ASA to be primary regulator for new HFSS advertising restrictions

Ofcom has designated the Advertising Standards Authority (ASA) as the regulatory authority for online advertising of high fat, salt and sugar (HFSS) food and drink.

The ASA is responsible for enforcing the relevant HFSS advertising restrictions requirements of the Communications Act 2003, which were introduced by the Health and Care Act, as well as creating guidance. Ofcom can revoke the designation if the ASA fails to fulfil its obligations or no longer meets the requirements.

Informal agreement reached on amending Breakfast Directives

On 30 January 2024, the European Parliament, Council of the EU and European Commission reached an informal trialogue agreement on the proposed directive amending several existing directives related to honey, fruit juices, fruit jams and dehydrated milk for human consumption. The directive aims to "promote healthier diets, provide transparency on product origin, and simplify labelling".

Changes include the following:

Honey:

• Country of origin will be indicated on the label in descending order, along with the percentage each country represents in the blend.
• Packages under 30 grams to use two-letter ISO codes instead of country names to ensure flexibility.

Fruit juices:

• Addition of new categories for reduced-sugar fruit juices: "reduced-sugar fruit juice", "reduced-sugar fruit juice from concentrate" and "concentrated reduced-sugar fruit juice".
• Option to use the label "fruit juices contain only naturally occurring sugars"

Fruit jams:

• Increase the minimum fruit content in jams and extra jams.
• 450g as a general rule for jam, and 500g as a general rule for extra jam.

Milk:

• Allowance for treatments that produce lactose-free dehydrated milk products.

The agreement is still subject to formal approval, and once published in the Official Journal of the European Union, Member States will have 18 months to transpose the provisions into national law before it applies throughout the EU.

European Parliament adopts position on gene-edited plants

The European Parliament has adopted its position on new genomic techniques (NGT) and agreed with the European Commission's proposal to have two different categories and two sets of rules for NGT plants.

Currently all plants obtained by NGTs are subject to the same rules as genetically modified organism (GMO). Under the proposal, NGT plants that could also occur naturally or by conventional breeding (NGT 1 plants) would be exempted from the requirements of the GMO legislation, and will be subject to a verification procedure set out in the proposal. For NGT 2 plants, the GMO framework still applies meaning they will be subject to the stricter requirements of GMO legislation including the authorisation procedure.

Under the Parliament's adopted position, mandatory labelling needs to be required for all products from NGT plants; whereas the Commission's proposal only required labelling for NGT 1 plants. In addition, for NGT 2 plants which will contribute to a more sustainable agri-food system, the Parliament agreed with the Commission to accelerate the risk assessment, but added that the precautionary principle must be respected when doing so.

The Parliament's proposal also introduces a ban on patents for NGT plants, plant material and parts thereof, genetic information and process features. This is to "avoid legal uncertainties, increased costs and new dependencies for farmers and breeders". MEPs have requested a report by June 2025 on the impact of patents on breeders' and farmers' access to varied plant reproductive material, along with a proposal to update the EU intellectual property rules in line with the proposed patent ban.

Now that the Parliament has adopted its position, negotiations between EU Member States to agree on the final law can begin.

Consultation launched on 'Not for EU' labelling on agrifood products across Great Britain

On 31 January 2024, a "Safeguarding the Union" policy paper was published, which proposes amendments to the Windsor Framework agreement. It outlines that the government intends to introduce "Not for EU" labelling requirements, which are currently just for certain agrifood products being placed on the Northern Ireland market via the "green lane", to apply to agrifood products across Great Britain, and not just in Northern Ireland. The reason for this change is to ensure no incentive arises for businesses to avoid placing goods on the Northern Ireland market.

If implemented, these changes would start to apply with the next phase of labelling requirements under the Windsor Framework: from 1 October 2024 labels are required for prepacked meat, prepacked milk or prepacked dairy products; then from 1 October 2025 the requirement will apply to any other prepacked retail goods. For businesses placing products on the UK market that are not destined for the Union market, this will mean ensuring "Not for EU" labels are applied to necessary products to ensure compliance. A consultation on this change has been launched, which closes on 15 March 2024 and businesses that have views on this change should consider responding to the consultation.

The Food and Drink Federation has warned that requiring the "not for EU" label for the whole of the UK would cost a significant amount and could lead to manufacturers being forced to reduce the number of products they sell in the UK.

UK government to introduce improvement notices for breach of health and nutrition claims

There is a new lighter-touch enforcement regime for breach of the health nutrition claims regulation which is being brought in as part of the government's post-Brexit "smarter regulation" initiative.

Following its consultation on proposed changes to the nutrition labelling, composition and standards retained EU law (now known as assimilated EU law), the UK government confirmed in its response that it will be introducing legislation to enable improvement notices for breach of health and nutrition claims. See our Insight for more.

The amending regulations introducing these changes have been laid and come into force on 1 October 2024.

EFSA draft novel food guidance for public consultation

The European Food Safety Authority (EFSA) has launched a consultation on draft guidance for the scientific requirements of an application for authorisation of a novel food. This guidance is the first that envisages lab-grown meat and will sit alongside rules that the Commission will implement on administrative and scientific requirements for novel food applications.

The draft guidance provides advice on the scientific information that applicants need to provide to demonstrate the safety of a new type of food. This includes details about the food's description, how it is made, its ingredients, specifications, how it will be used, and how much of it people are expected to consume. This information will then be used by the EFSA to conclude whether or not the novel food is safe.

The consultation closes on 14 April 2024 and businesses that submit novel food applications should consider whether they wish respond to the consultation before the deadline.

Feedback period opened on EU restriction on BPA in food contact materials

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