Regulatory Outlook | Food Law | February 2019

Current issues

New guidance on low alcohol descriptors

Following a public consultation in 2018, guidance concerning the appropriate use of low-alcohol has been issued which sets out how the government expects low-alcohol drinks (those of 1.2% abv or less) to be described in England.

Guidance on food traceability, withdrawals and recalls

A consultation on guidance on food traceability, withdrawals and recalls within the UK food industry was launched on 7 January 2019 and closes on 4 February 2019. The purpose of the consultation is to seek views from stakeholders on this newly developed guidance. The guidance will be of interest to food business operators, trade organisations, consumer organisations and food enforcement authorities.

Food Standards Agency response to consultation on Regulating Our Future: amendments to the Food Law Code of Practice (England) anticipated

The FSA is expected to issue its response to the consultation soon. The purpose of this consultation was to seek views on:

• the process of registration;

• the application of the food hygiene intervention rating scheme;

• recognition of national inspection strategies; and

• co-dependent aspects still in development.

The FSA has, however, indicated that it will only be taking forward amendments relating to the process of registration and the Primary Authority national inspection strategies at this time.

Energy drinks and children

The House of Commons Science and Technology Committee has issued a report on energy drinks and children. The report makes a number of recommendations, including that:

• the UK government should consult on whether introducing additional labelling requirements on all products containing caffeine (in milligrams per 100ml) including average values per serving of tea and coffee in coffee shops would help consumers make informed choices;

• the government should introduce, 18 months after Brexit takes effect, additional labelling requirements to ensure that advisory messages are more prominent on energy drinks packaging and not merely in 'the small print'; and

• the Committee of Advertising Practice should consider whether to explicitly include high-caffeine products within the scope of its advertising approach to high fat, sugar or salt content (HFSS) foods and drinks.

In Focus: No deal Brexit

What would be the impact of a no deal Brexit for UK businesses trading with the EU?

In the event of a no deal Brexit, the UK food and drink sector will face significant challenges in terms of disruption to the supply chain, insufficient labour (skilled and unskilled), and increased costs and administration when exporting and importing.

The UK government has made assurances that the current standards on food safety, labelling and quality will be maintained. Initially, EU-based provisions will be rolled over with some changes to reflect that the UK is no longer part of the EU. However, the EU has said that it will no longer recognise UK approvals for products if the UK leaves with no deal because legally the UK will be classed as a 'third country'.

For UK food products being sold in the EU, food manufacturers should consider the following:

Origin labelling

The use of the term ‘EU’ (or the "EC" abbreviation) in origin labelling would no longer be correct for food or ingredients from the UK. Additional consideration will need to be given to blended products originating from more than one EU country.

Addresses on food labelling

Changes may be needed to labelling to ensure an EU address is included.  This could be the address of an EU entity within the corporate group who is the "Food Business Operator" or the address of the importer of the product into the EU.  Care should be taken to understand the regulatory implications of another entity being the Food Business Operator.

Geographical Indications

While the UK government proposes to establish an independent UK GI scheme, any producers who wish to utilise an EU GI will need to submit an application to the European Commission as a third party producer.

Organic

Organic products certified by a UK control authority will no longer be validly certified as organic for sale in the EU.  Steps should be taken to certify those products with an EU control authority.

What would be the impact of a no deal Brexit for non-UK businesses trading with the UK?

Like all businesses outside the UK, the food industry will likely see an increase in cost and administration of exporting to the UK due to the potential for lengthy delays at ports and increased checks on products.

Whilst the UK government has said that it will recognise foods produced according to EU laws for a period of time after Brexit, it has also indicated some changes.  For example, products sold in the UK will need to be labelled with a UK address of the UK Food Business Operator or an importer based in the UK.

There will be an allowance for food manufacturers to sell through existing stock that has been placed on the market in the UK prior to Brexit day.  Where possible, businesses may wish to consider moving additional stock across to the UK in advance of Brexit.

What should businesses be doing now to prepare for a no deal Brexit?

We have outlined above some of the immediate considerations that need to be put in place in terms of labelling, business structure and movement of stock.

For those that have not already done so, it would be prudent to review the options for sourcing raw ingredients and, where possible, to stockpile ambient or frozen ingredients. It has, though, been reported that UK warehousing capacity is extremely limited as a result of businesses stockpiling in advance of 29 March 2019.

The UK government has issued high-level practical guidance called the "Partnership pack: preparing for changes at the UK border after a 'no deal' EU Exit" in addition to the series of technical notices (four of which are specific to the food sector) it issued in 2018.

Dates for the Diary