FREE CHAPTER from ‘A Practical Guide to Food Law in the United Kingdom – 2nd Edition’ by Ian Thomas

24/01/2022

CHAPTER ONE – FOOD LAW IN THE UK

Introduction

This chapter will briefly explain some of the issues arising from the UK ceasing to be a member of the European Union.

Until 11pm (UK time) on 31 December 2020, the United Kingdom of Great Britain and Northern Ireland was a member of the European Union. This is referred to as IP completion day.

It is not necessary, and would take too much time, to discuss the reasons why the UK decided to leave the EU, but there have been a number of political, social and economic consequences arising from that decision.

This chapter will also briefly review one of the fundamentals of EU law, the free movement of goods.

It will then move to consider how food law is now regulated in the United Kingdom, while recalling that the position in Great Britain (England, Wales and Scotland) is different from the position in Northern Ireland.

The four nations of the United Kingdom

Consumers in each of the four nations of the UK are entitled to the same level of protection from unsafe food and illegal practices as they were when they were EU citizens.

Now that the UK is no longer subject to the EU regulatory regime, the UK authorities have a greater role to play, particularly with regard to developing its own laws and policies and determining applications for approvals and authorisations.

The Food Standards Agency’s (FSA) remit covers England, Wales and Northern Ireland and Food Standards Scotland (FSS) has its own separate food law responsibilities and obligations. The FSA and FSS have signed a Memorandum of Understanding (MoU) that sets out the principles for their working relationship.

In its Summary, the MoU states:

“Both the FSA and FSS recognise that each has a contribution to make to an effective food and feed safety regime in the United Kingdom (UK), whilst recognising that their policy, priorities and objectives may not always be identical.”

As food is a devolved power, the responsibility for policy and delivery of food controls rests with the authorities in England, Wales, Scotland and Northern Ireland. It is important to have regard to this when considering the rules in each nation.

The UK outside the EU

Since IP completion day, the UK has, from an EU perspective, been classed as a third country without full access to the EU Single Market and the Customs Union.

This has had, and continues to have, significant implications for food businesses and consumers in the UK, and indeed in the EU.

It is now possible for GB (and the UK as a whole subject to the current situation in NI) and the EU to develop their own food laws and policies which may not always be aligned. This is known as regulatory divergence. However, even though that possibility exists, consumer protection must remain the primary focus.

England, Wales and Scotland may also develop their own laws and policies.

One of the comments that made headlines in 2021 was the suggestion that the UK might revert to using imperial, rather than metric units of measurement (for the younger readers, imperial measurements include miles, feet and inches).

Although this may not have meant to signal a definite intention to change the law, it does highlight that GB now has the ability to change laws that it was bound to follow while a Member State of the EU. If you are of more mature years, like myself, you will be reminded of the level of feeling generated by the issue of imperial versus metric units of measurement in the case of Thoburn v Sunderland City Council and related appeals [2002] EWHC 195 (Admin).

Irrespective of the legal and political issues, the UK and the EU will remain important trading partners, even if the relationship is currently somewhat strained. However, if the trading rules become more complex or the regulatory landscape becomes too challenging, there will be a temptation, or even a need, to seek new markets. This is already happening with the negotiation and signing of new trade deals.

Applying a holistic approach, regard must be had to the potential adverse impacts on other matters such as food safety, animal welfare and the carbon footprint of this new trade.

Closer to home, the change has also created a line (perhaps a better word than ‘border’) between GB and NI and some foods must to undergo inspection and checks. This has created political tensions and the UK threatening to “trigger” Article 16 of the Ireland/Northern Ireland Protocol which could effectively suspend the operation of the Protocol.

Article 16, is headed ‘Safeguards’:

“1. If the application of this Protocol leads to serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade, the Union or the United Kingdom may unilaterally take appropriate safeguard measures. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation. Priority shall be given to such measures as will least disturb the functioning of this Protocol.”

It is also worth remembering that the UK’s departure from the EU has had a positive impact for some food business, whereas for some it has not made any significant difference.

The free movement of food within the EU

As many GB food businesses use the EU as a route to market, it is worth briefly reviewing what this means.

Food is an international commodity and as such the food businesses and their advisers need access to competent local market advice. While the law in the EU-27 may be the same or similar, it is important to ascertain what the trading conditions are like “on the ground” and how the laws are regulated and enforced by the competent authorities.

In an EU context, the principle of mutual recognition provides that a product lawfully produced or marketed in one EU country may be sold in other Member States without being subject to financial or other barriers. Reference may be made to Regulation 2019/515on the mutual recognition of goods lawfully marketed in another Member State.

This principle arises from the creation of the internal market and the general prohibition on imposing restrictions on imports and exports within the European Union (see for example, Articles 26, 28 and 30 of the Treaty on the Functioning of the European Union (TFEU)).

Member States may not create rules which amount to “quantitative restrictions” on the movement of products (Articles 34 and 35 of the TFEU).

However, prohibitions may be imposed on specified grounds including “the protection of health and life of humans, animals or plants”, but this must not amount to a “means of arbitrary discrimination or a disguised restriction on trade between Member States” (Article 36 of the TFEU).

Any attempt to go behind the free movement of goods must be justified, proportionate and for the benefit of consumers.

When assessing the impact of a particular restriction, regard must be had to the product itself and whether or not there are any EU-wide harmonised rules regarding the composition or labelling of the product which apply in the Member States.

For further reading about the principles of mutual recognition, see Procureur du Roi v Dassonville v S. A. ETS Fourcroy and S. A. Breuval et Cie, Civil Parties (Case 8/74) [1974] 2 C.M.L.R. 436 (Scotch Whisky); and Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein (Case 120/78) [1979] 3 C.M.L.R. 494 (French liqueur, ‘Cassis de Dijon’) and EC Commission v Spain (Case C-12/00), EC Commission v Italy (Case C-14/00) (chocolate) and BS and CA v Ministère public et Conseil nationale de l’ordre des pharmaciens (Case C-633/18 (cannabidiol – CBD).

The free movement of food within the UK

Since IP completion day the rules relating to the movement of goods, including food, between the UK nations have been the responsibility of the UK Government and the devolved nations of England, Wales, Scotland and Northern Ireland.

The rules are contained in the United Kingdom Internal Market Act 2020 which came into force on IP completion day. Goods may be traded freely, with some exceptions, across the UK’s internal borders.

This is achieved by two market access principles:

  1. The principle of mutual recognition namely goods that may be lawfully sold in the part of the UK in which they were produced or imported into may be sold in the other parts of the UK; and

  2. The principle of non-discrimination which prevents the imposition of discriminatory rules in respect of goods with a relevant connection to another part of the UK.

Those market access principles do not apply to:

  • Requirements that were in force in a part of the UK before 31 December 2020 and remain unchanged; and to

  • Goods sold within Great Britain (England, Scotland and Wales) where requirements are the same across Great Britain

The principles apply with modifications to trade between Great Britain and Northern Ireland, although the provisions of the Northern Ireland Protocol take precedence for as long as the Protocol is in force. This means that any differing requirements on goods sold in Northern Ireland which apply as a result of the Protocol will have to be complied with (i.e. requirements imposed pursuant to EU food law).

The market access principles do not apply in the circumstances set out in schedule 1 to the 2020 Act which includes regulations relating to controlling pests and disease, and unsafe food.

The Internal Markets Act 2020 has a number of twists and turns and should be reviewed in detail.

Northern Ireland

Before looking at the substantive changes required for GB law, it is worth just noting how EU food law continues to apply in NI (the “why” it applies is a different issue). Although EU food law applies in NI, it is not an EU Member State.

One consequence of situation in NI is that there is an open border between Northern Ireland and Ireland. Another consequence is that there are particular issues and restrictions relating to the trade in goods between Northern Ireland and Great Britain.

EU food law applies in Northern Ireland as a result of the Withdrawal Agreement and the Protocol on Ireland/Northern Ireland.

Article 5 (4) of the Protocol states that those EU laws set out in Annex 2 apply to Northern Ireland.

The Annex contains more than 40 different sections covering a wide-range of goods, each one setting out the particular EU legal provisions.

Some of the food law provisions listed in Annex 2 that apply in Northern Ireland are:

  • Food – general (includes Regulation 178/2002 (and confirming that the term Member State in Article 29 does not include NI), Regulation 1169/2011 and Regulation 1924/2006)

  • Food – hygiene (includes Regulation 852/2004 and Regulation 853/2004)

  • Food – ingredients, traces, residues, marketing standards (includes the regulations on food additives, Directive 2002/46 and Regulation 609/2013)

  • Food contact material (includes Regulation 1935/2004)

  • Feed – products and hygiene (includes Regulation 767/2009, Regulation 1831/2003 and Regulation 183/2005)

  • GMOs (includes Regulation 1829/2003)

  • Animal welfare (includes Regulation 1/2005 and Regulation 1099/2009)

  • Official controls (includes Regulation 2017/625)

The continued impact of EU food law in Great Britain

When it was a member of the EU, the UK was bound by all aspects of EU food law. EU food regulations had direct effect and EU food directives had to be transposed by the Member State in a way that gave effect to their meaning and purpose.

As the majority of EU food legislation are regulations, when it was a Member State the UK had little to do other than enacting legislation dealing with matters such as identifying the competent authority, deciding how the law would be regulated and enforced, and deciding what sanctions should be available for non-compliance.

Upon leaving the EU, it would have been impossible for the UK authorities to create a whole new ‘statute book’ of food law for GB.

In general terms, the solution was:

  1. To keep the version of EU food law (which was primarily in the form of regulations) that was in force in the UK at IP completion day (31 December 2020); and

  2. To amend that EU food law and existing GB food laws that gave effect to those and other EU laws such as directives

This created a new category of domestic law known as ‘retained EU law’ which includes:

  1. Direct EU legislation

This includes EU law that was directly applicable in the UK such as regulations and decisions.

For example, Regulation 178/2002, the general food law regulation and Regulation 852/2004 on the hygiene of foodstuffs.

The English language version of the EU law is authoritative.

  1. EU-derived domestic legislation

Domestic legislation made under section 2 (2) of the European Communities Act 1972 and other domestic legislation giving effect to EU obligations.

For example, the Food Supplements (England) Regulations 2003 which transposed Directive 2002/46 but which have themselves been amended for example by EU Exit Regulations (see below).

  1. Retained case law and retained general principles of EU law

This includes principles set out by, and decisions of, the Court of Justice of the European Union that had effect on IP completion day in relation to the above categories.

It also retains general EU principles such as proportionality and decisions of domestic courts and tribunals relating to the above categories.

In addition, the following should be noted:

  1. The European Communities Act 1972, under which EU law was ‘supreme’ in the UK has been repealed.

  2. Although UK courts can no longer seek a ruling from the Court of Justice of the European Union (Article 267 of the TFEU), that court retains jurisdiction to hear and determine any questions that had been referred to it prior to 31 December 2020 – Article 86 (2) of the Withdrawal Agreement and see the case of The Queen on the application of the Association of Independent Meat Suppliers and another v Food Standards Agency (Case C-579/19 a Judgment of the CJEU dated 2 September 2021)

Although, revisions to EU food law post 31 December 2020 do not apply in the UK, that does not mean that domestic law and policy has not moved forward. The final chapter reviews some domestic laws that have been, or are due to be, enacted.

Making food law relevant to and applicable in GB – EU Exit Regulations

The main way in which food law was revised to take account of the UK’s departure from the EU was to enact a series of statutory instruments to amend the retained EU food law regulations themselves and the GB legislation that gave effect to EU food laws (e.g. regulations and directives).

The many thousands of statutory instruments that enacted these changes generally contain the words “EU Exit” in their titles.

However, although this was a basically sound approach to resolving the difficulties arising from the UK’s departure from the EU, searching for and successfully finding the applicable “EU Exit” Regulations is not always straightforward.

Further, some EU Exit Regulations were passed in 2019 and they refer to the UK. Once, an agreement between the UK and EU had been reached regarding their future relationship, those 2019 Regulations had to be amended to reflect the different positions of GB and NI and to provide for the identification of the GB competent authorities.

In addition, it is not always as straightforward as taking a word or phrase from the EU or existing UK law (such as food supplements) and using that as a search term to obtain the applicable EU Exit regulation.

Websites such as www.legislation.gov.uk provide resources for finding EU Exit regulations as well as EU and domestic legislation as retained EU law. There are some web resources and paid subscription services which provide amended and consolidated versions of EU retained law and are very helpful.

For the power to make regulations giving effect to the UK (GB)’s departure reference may be made to the European Union (Withdrawal) Act 2018 and European Union (Withdrawal Agreement) Act 2020. The need for revised legislation was to deal with “deficiencies arising from withdrawal” (see section 8 of the 2018 Act).

The new legislation is complex and finding the particular provision that amends pre-IP completion day law can be quite laborious.

EU Exit Regulations – an example

It may assist to provide a brief example of how GB food law looks since IP completion day. The Nutrition (Amendment etc.) (EU Exit) Regulations 2019 (2019 No. 651) and the Nutrition (Amendment etc.) (EU Exit) Regulations 2020 (2020 No. 1476) may be used for this purpose.

Jurisdictional application

  1. The 2019 Regulations were enacted along with equivalent regulations for Wales, Scotland and Northern Ireland;

  2. The original version of the 2019 Regulations applied to the United Kingdom but as a consequence of NI remaining part of the EU, the 2020 Regulations made an amendment so the 2019 Regulations now apply to England, Wales and Scotland (regulation 1);

Subject-matter amendment – food supplements

  1. The 2019 Regulations, as amended, make particular provisions about food supplements. This means that searching for “food supplements” and “EU Exit Regulations” will not necessarily be sufficient find the Regulations that give effect to the changes;

  2. The general effect of the Regulations is to transfer the regulation of food supplements from the EU institutions, initially to the authorities in the UK and then to those in GB;

  3. Under the original 2019 Regulations (regulation 5), the power to make regulations in respect of food supplements is exercisable by the “appropriate authority” which is defined as;

(a) for regulations applying in relation to England, the Secretary of State;

(b) for regulations applying in relation to Scotland, the Scottish Ministers;

(c) for regulations applying in relation to Wales, the Welsh Ministers;

(d) for regulations applying in relation to Northern Ireland, the Department of Health

The reference to Northern Ireland was omitted from IP completion day.

  1. Schedules 1 and 2 to the 2019 Regulations provide the list of vitamins and minerals that may be used in the manufacture of food supplements and allows for the amendment of those schedules and relating to food supplements placed on the market in GB;

It can be seen that these provisions replicate, certainly at present, the provisions of EU directive 2002/46 on food supplements that continues to applies in EU 27 and NI.

  1. Regulations 3 and 4 of the 2019 Regulations provide for regulations to be made in GB in relation to purity criteria and for setting maximum amounts of vitamins and minerals that may be present in food supplements;

  2. Regulation 12 of the 2019 Regulations also make substantive amendments to the Food Supplements (England) Regulations 2003;

  1. The definitions in Directive 2001/83 (medicinal products) and Directive 2002/46 (food supplements) are omitted,

  2. The definition of medicinal product is now as set out in the Human Medicines Regulations 2012 rather than the definition in Directive 2001/83 (medicinal products),

  3. References to the list of vitamins and minerals permitted for use in food supplements in Annex I and Annex II of Directive 2002/46 are now to be found in schedule 1 and schedule 2 of the 2019 Regulations (see above)

Subject-matter amendment – other

  1. The Regulations also make provision for the amendment of;

  1. Several pieces of domestic legislation including; medical foods, Kava-kava in food, the addition of vitamins, minerals and other substances in food, infant formula and food for specific groups;

  2. EU Regulations in force in GB as retained EU law including; Regulation 1924/2006 on nutrition and health claims, Regulation 1925/2006 on the addition of vitamins and minerals and other substances to food and Regulation 609/2013 on food for specific groups; and

  3. Various Commission Regulations in force in GB as retained EU law, for example by omitting references to “Community” or “Union” as appropriate and inserting references to Great Britain.

Interpreting food law

EU food law is enacted following a process that involves the Parliament (the peoples’ representatives), the Commission (the EU “civil service”), the Council (ministers from the Member States), the Court of Justice of the European Union (interpreting EU law) and the European Food Safety Authority (providing advice on scientific issues).

EU law has to be relevant to and have regard to the now 447+ million EU citizens with their differing needs, requirements, language, culture and history. This can result in a law based on compromise which the national institutions must then interpret, apply and enforce.

Interpreting EU law requires a careful assessment of the wording of the legal provision but also, and of particular relevance for food law, by having regard to the context in which the law occurs and the objectives pursued by the rules of which it is part (see for example Merck Case 292/82, and Verband Sozialer Wettwerb eV v Innova GmbH Case C-19/15). This often means going beyond the mere “letter of the law”.

For further reading in relation to interpretation of hygiene laws in an EU context see the decisions of the Court of Justice of the European Union in Albrecht and others Case C-382/10, 6 October 2011 (containers for self-service retail of bread and bakery products) and Astrid Preissl Case C-381/10 (the installation of a washbasin in food premises). They are discussed further in chapter 4 on food hygiene.

In a domestic context, the High Court has confirmed the above position concerning interpreting EU law; “when interpreting these [food hygiene] Regulations, it is necessary to have regard to the purpose for which they were created, namely, to protect consumers with regard to food hygiene.” (Kothari, Naik and Raw Lasan Ltd v London Borough of Harrow [2009] EWHC 1354 (Admin))

As the primary focus of food law in GB continues to be the safety of food and the protection of consumers, there is no reason to believe that this general approach to statutory interpretation will change in the short term.

However, the interpretation of law in a post-EU environment is not always straightforward and further guidance can be found in domestic case law such as Lipton v BA City Flyer Limited [2021] EWCA Civ 254.

Conclusion

The UK’s decision to leave the EU has undoubtedly created challenges for the food industry and for consumers.

At present, November 2021, it is very hard to assess the real impact of that decision due to the ongoing impact of Covid-19.

The problems in the food supply chain that have been experienced during the past year might be due to the pandemic, or to the UK leaving the EU or to both. Until the issues relating to Covid-19 are resolved, the true level of change resulting from the UK being outside the EU may not be known.

Of course, the issues directly linked to the UK’s departure from the EU might well have been resolved, or almost resolved, by the time the pandemic has ended (although as at November 2021 there is little sign of and end to the pandemic).

MORE INFORMATION / PURCHASE THE BOOK ONLINE