Regulatory Outlook | Food Law | January 2021

Current Issues

FSA publishes guidance on new allergen labelling rules

The Food Standards Agency (FSA) published guidance in June 2020 on new allergen labelling laws on food that is prepacked for direct sale (PPDS) at outlets such as coffee shops. The change in allergen rules, known as “Natasha’s Law” after the death of Natasha Ednan-Laperouse, will come into effect from 1 October 2021.

Although the guidance is not binding, it will inform enforcement authorities as to how to apply the new laws and determine which products qualify as PPDS. The guidance should therefore inform food business operators as they prepare for the new rules.

Single use plastics: straws, stirrers and cotton buds banned in England

The UK government continues to introduce new measures as part of its “war on plastic”. From 1 October 2020 supplying single-use plastic straws, stirrers and cotton buds became prohibited in England, save for certain exemptions. The ban applies to all businesses that supply these products, including manufacturers and retailers. Continued supply of these products could result in a fine by the relevant local authority.

Exemptions to the ban include the use of single-use plastic straws in the context of medical devices or for medical purposes, as well as use in prisons, care homes and schools. Registered pharmacies and catering establishments are allowed to supply single-use plastic straws on demand but cannot display or advertise them.

Food and Covid-19: new guidance for food businesses

The Covid-19 pandemic has brought about many changes in how food businesses conduct their operations. Since 10 September 2020, hospitality venues in England such as pubs and restaurants must keep a record of people on their premises to support the track-and-trace effort. Failure to adhere to these obligations may result in a fine. Guidance was last updated in December 2020 and will continue to evolve throughout the pandemic.

The Department of Environment, Food and Rural Affairs has also published guidance for food businesses on adapting their operations to the pandemic. The UK government is likely to continue to update current Covid-19 guidance and bring in new measures that will affect food businesses and others in the supply chain.

The Advertising Standards Authority also published guidance in July 2020 that ‘completely prohibits’ both explicit and implicit references to Covid-19 in food advertising on the basis that these are unlawful medical claims. The regulator has taken a tough stance, with the prohibition on implicit references extending to phrases that suggest a food product can help consumers remain healthy during the pandemic.

European Commission launches IT tool on food labelling

The new tool covers 87 different categories of food and helps food business operators (FBOs) identify the mandatory labelling requirements in 23 EU languages.

In Focus: Regulation after Brexit

What do UK businesses trading in the EU need to do now that the Brexit transition period has ended?

The end of the transition period has brought about changes in labelling of food products, including on country of origin (Great Britain is no longer in the EU and has its own UK GI Scheme), GB health and identification marks, and the use of organic logos (see more on this below).

There are also changes to the food information that must printed on pre-packaged food labels. From 1 January 2021, all pre-packaged food placed on the EU market from the UK must have an EU or Northern Ireland (NI) address for the food business operator (FBO) or an EU or NI importer on the food label to ensure continued compliance with EU Regulation (EC) 1169/2011 on food information to consumers. This means that UK-based businesses looking to place their products on the EU market will need to think carefully about how this will affect their corporate structure; for example, whether they will establish an EU subsidiary or whether a third party will be named as the importer.

UK businesses will need to come to terms with the Border Operating Model published by the UK government in July 2020, which outlines the controls placed on goods exported from GB to the EU and vice versa. The rules around trade between NI, the EU and GB is set out in the Northern Ireland Protocol and its supporting documents and guidance.

Businesses will also have to familiarise themselves with the EU-UK Trade and Cooperation Agreement. Specifically, how sanitary and phystosanitary border controls will impact trade, as agri-food traders will incur extra costs and paperwork (such as health certificates) on GB–EU trade.

Perhaps more importantly, traders will need to determine whether their goods meet the Rules of Origin and can therefore be traded tariff free. This will depend on the type of food product, its origin and whether it was “processed” in the EU or UK. For example, basmati rice imported from India and milled in the UK will not qualify for access to the EU tariff-free, and meat products must contain only meat from animals born and raised in the UK or the EU.

What do non-UK businesses trading in the UK need to do now that the transition period has ended?

According to UK government guidance, food businesses can continue to use an EU, GB or NI address for the FBO on prepackaged food sold in GB until 30 September 2022. However, from 1 October 2022 pre-packaged food sold in GB must include a UK address for the FBO. If the FBO is not in the UK, the label must include the address of a UK-based importer.

As mentioned above, non-UK businesses trading in the UK and either importing or exporting goods across the GB-EU border will need to understand and follow the new customs rules set out in the Trade and Cooperation Agreement, the GB Border Operating Model and the Northern Ireland Protocol.

Which incoming EU laws should UK businesses be aware of, and is the UK likely to implement similar rules?

Regulation (EU) 2018/848 on organic production and labelling of organic products comes into force on 1 January 2021 and essentially strengthens EU rules on organic production and the labelling or organic products. The Regulation applies to products placed on the EU market after 1 January 2022.

As the regulation came into force after the end of the transition period, it does not form part of ‘retained EU law’ in the UK and does not apply to products placed on the UK market. However, under the Trade and Cooperation Agreement, the EU and UK have agreed a reciprocal recognition of equivalence of the current EU and UK organic legislation and control system for all categories of organic products. This means that organic products complying with EU law and certified by control bodies recognised by the EU can be placed on the UK market and vice-versa. In view of new EU rules for organic products applying as of 1 January 2022 as set out above, it has been agreed that equivalence will be reassessed by end of 2023.

Are there any other areas where the UK regime might start to diverge from that of the EU? If so, what should businesses do to ensure they are prepared?

There has been much debate over whether and how GB food standards will remain as high and comparable to EU food standards post-Brexit. It is possible that food standards between the UK and the EU could diverge over time. A House of Lords amendment to the Agriculture Bill, which was designed to prevent future trade deals allowing imports of food produced to lower standards than those currently permitted in the UK, was roundly rejected by MPs in October 2020.

Whether or not the standards diverge, just like agri-food exporters from every other non-EU country, UK agri-food exporters will still have to meet all EU sanitary and phytosanitary import requirements and be subject to official controls carried out by Member States’ authorities at border control posts. Where required, these controls include the verification of health certificates.

If food standards diverge, businesses will need to ensure that they are up to date and comply with applicable standards in both the EU and the UK. This will add to the already notable administrative burden placed on food business operators selling goods that cross the GB/EU border.

Other areas where we could see divergence include possible approval of cannabidiol (CBD) as a novel food which would allow the CBD market to grow in the UK. The UK may also not adopt the amendments proposed to the CMO Regulation, which could allow greater freedom in the UK for plant-based foods to use dairy and meat designations. Finally, it is possible that the UK will take a different view to the EU on approving certain health claims.

Dates for the diary

31 March 2021

Deadline for businesses that wish to sell CBD products to submit an application for novel food approval to the FSA. Only those products that are covered by a fully validated application can be sold after 31 March 2021.

1 April 2021

The plastic carrier bag charge in England will be increased to 10p and extended to all retailers from 1 April 2021. See here for more information.

1 October 2021

New allergen labelling rules apply to food pre-packaged for direct sale.

1 October 2021

Importers of food from the EU into GB will need to ensure the product label has the name and address of a food business operator established in GB.

31 December 2021

Under the Trade and Cooperation Agreement, for UK-EU trade (in both directions), traders will now need to have obtained declarations from their suppliers that a product meets the Trade and Cooperation Agreement Rules of Origin. Until now, guidance only requires that they are confident that the goods do meet the Rules of Origin. Businesses may be asked to retrospectively provide a supplier declaration after this date. See guidance here.