CHAPTER ONE – DEVELOPMENT OF FEED LAW
Introduction
In this introductory chapter, we briefly examine the development of United Kingdom (UK) law relating to animal feed and how it has gradually evolved to form the somewhat complex set of provisions we see today.
The end of the nineteenth century and the beginning of the twentieth century witnessed two changes which created the framework which largely endures to the present day. The first of these was industrialisation of feed production, and the increased volume of production and sophistication that that brought with it. The second was a relative inversion in the importance of contract law and statute law as the means by which the quality and other attributes of feed were determined. While this inversion did not quite turn caveat emptor (let the buyer beware) into caveat venditor (let the seller beware), the greater role which regulation played in the commercial supply of animal feed was of considerable significance in setting standards and clarifying expectations about feed safety.
As with many other areas of public policy where increasingly sophisticated economic and commercial practices created perceived imbalances and sometimes, criminality, Parliament has seen fit to intervene in the regulation of animal feed on numerous occasions. Intervention has often been prompted by major developments of various kinds, including natural events such as unforeseen outbreaks of animal disease, as well as political events, such as the UK’s joining, and eventual leaving, of the European Union (EU).
The UK has also responded, over the years, to developments at an international level, either through promoting global standards for animal feed as part of its membership of the EU trading bloc, or by meeting its own international trading partners’ requirements for the quality of animal feed. Trading objectives have impacted, and continue to impact, on the development of domestic feed law. A brief examination of these international factors is therefore helpful, at this early stage, to set the context for much of what follows in later chapters.
What can undoubtedly be said at the outset about animal feed law in the UK is that, unlike certain more visible areas of regulation, such as in the health service, education, or local government – where piecemeal legal developments are from time-to-time incorporated into consolidated Acts of Parliament – the law relating to animal feed has tended to develop in discrete strands or layers without any serious attempt at consolidation.
Regrettably, this means that animal feed law remains spread across various parts of the statute book often making the nailing down of the answer to a specific query, quite the challenge.
This book provides something of a guide map, so that the reader can begin to begin to trace out those legal provisions which can answer the particular point about animal feed with which they may be grappling.
It is important to stress at the outset that this book focuses on legislation and case law which applies throughout the UK. However, readers should be aware that, as a devolved matter, animal feed law may vary as between England, Wales, Scotland and Northern Ireland. While differences are generally minor, they do exist, and readers should always identify the precise law which applies to the jurisdiction with which they are concerned, perhaps using the general descriptions in this book as a starting point.
Early legislation
Regulatory provision relating to animal feed gradually began to take shape from the end of the nineteenth century onwards. The first piece of legislation, aimed at preventing adulteration of animal feed, was the Fertilisers and Feeding Stuffs Act 1893. This Act made it an offence, among other things, to sell feed for cattle containing any ingredient ‘deleterious’ to cattle, or to which had been added any ingredient ‘worthless’ for feeding purposes and not disclosed at the time of sale. These provisions were updated over time but have now disappeared from the statute book.
European Union law
Development of feed law has also taken place at a European level. For the period 1973 to 2020 – during which time the UK was a member of the EU and its predecessor organisations – numerous measures were adopted relating to the composition and marketing of animal feed. These included various Directives which the UK faithfully implemented by way of domestic secondary legislation made under the European Communities Act 1972 (ECA).
During the later period of the UK’s membership, the EU passed directly applicable regulations in respect of feed, including its marketing, composition, use and, notably, hygiene, with this final topic being an aspect of safety management to which domestic feed law had, until then, paid little attention.
These EU regulations did not need any implementing regulations under the ECA before they could be relied upon in domestic law. But as EU regulations do not generally specify enforcement measures – instead relying on member States to provide for enforcement using measures available in their own national legal systems – it was necessary for the four nations of the UK to pass domestic legislation to deal with enforcement.
While during its membership of the EU, the UK no doubt made compromises in relation to the detail of the feed legislation which was eventually adopted by the EU, it would be fair to say that, at a philosophical level, both the EU and the UK shared the view that feed was, and is, an important part of the human food chain and deserving of regulatory intervention.
EU Exit
After forty-seven years’ membership, the UK left the EU on 31 January 2020. EU law continued to apply in the UK during a transition period which ended at 11pm GMT on 31 December 2020. In anticipation of leaving, the UK passed the European Union (Withdrawal) Act 2018 (EUWA) which, broadly speaking, ‘saved’ much of the EU law, which would otherwise have been repealed, and turned it into domestic law. This domestic law (now known as “assimilated law“) could then, under less pressure of time, be added to, changed, or repealed/revoked as the UK (or its devolved nations) thought fit. Had this step not been taken, the regulatory framework for animal feed – along with many other areas of economic activity – would have been left in an incomplete and incoherent state and its important objectives, compromised.
As with other areas of assimilated law, extensive changes were made to EU feed law by statutory instruments made under the EUWA so that it worked properly after EU Exit. These changes did not alter the policy underpinning the law, but did make certain necessary amendments including, for instance, to the identity of bodies fixed with functions under the law, so that, in future, these bodies were UK bodies rather than EU bodies to which the UK no longer had access.
One of the seemly intractable problems of EU Exit was the status of Ireland. Ireland was the location of the UK’s only land border with the EU. While in many other parts of Europe, a hard border with control posts and inspection of goods and people passing through them would be uncontroversial, Ireland was different. A hard border between the Republic of Ireland and the British province of Northern Ireland was, politically, highly sensitive. It was also argued to be prohibited by the terms of the Belfast (or Good Friday) Agreement, which had been made in 1998 between the Irish and UK governments and the various political parties active in the province.
The Northern Ireland Protocol/Windsor Framework
Given the difficulties which a hard border on the island of Ireland would have created, special provision was made for Northern Ireland – the Northern Ireland Protocol (Protocol) – by which EU law would continue to apply there. The continued application of the Protocol is subject to periodic confirmation by a democratic vote of residents of Northern Ireland. The Protocol proved problematic in practice, as well as politically sensitive, and amendments were made to it by the Windsor Framework in 2023.
Among other things, the Windsor Framework allows a number of retail products (including certain pre-packaged pet food items) to be moved from Great Britain to Northern Ireland even though they may not comply with EU Law. However, with the exception of certain pre-packaged pet food, animal feed moved from Great Britain to Northern Ireland is not covered by the Windsor Framework easements and is subject to the full application of EU Law and checks at the GB/Northern Ireland border before it can be placed on the market in Northern Ireland.
International considerations
Following EU Exit, the UK and EU, as major trading partners, negotiated and implemented a free trade agreement known as the Trade and Cooperation Agreement (TCA). Under the TCA, the parties agreed tariff free mutual trade of many goods (including animal feed) and some mutual market access for services.
The TCA also deals with what are known as sanitary and phytosanitary standards (SPS). In broad terms, these are the rules and standards which countries put in place to identify and mitigate the biological, and other, hazards which plants and animals create, and which aim to provide protections against the inadvertent introduction of contagious diseases and other pathogens to which uncontrolled import and export of plants and animals might otherwise give rise. Animal feed – whether of plant or animal origin (or both) – falls squarely within the category of goods to which SPS standards are directed.
Sanitary and phytosanitary standards
SPS considerations are an important aspect of any free trade arrangement and serve to condition and qualify a country’s commitment to allow free movement of goods into its territory. In broad terms, World Trade Organisation (WTO) rules require a member’s SPS standards to be based firmly on science and to be no more restrictive of free trade than is necessary. So far as the TCA between the EU and the UK is concerned, each party maintains its own SPS standards and, at the time of writing, does not recognise the other party’s SPS standards as offering equivalence in terms of the quality of protection they provide.
The practical effect of a lack of recognised equivalence is that there is no free movement of animal feed between the EU and UK; rather each party applies some specific and demanding conditions at the border. These conditions include the supply of Export Health Certificates (EHCs) in respect of feed containing products of animal origin (which need to be completed by a veterinary surgeon); pre-notification of the arrival of affected feed at the border, inspection of documentation relating to the feed, and physical inspection of the feed itself by appropriately qualified border officials. These documents and checks add considerable cost and delay to the process of import and export, and generally make for higher prices for the goods in question. A brief consideration of how the law applies to the import and export of animal feed can be found in Chapter Four.
The EU “reset”
In May 2025, the UK and EU announced that they hope to negotiate a new SPS agreement which would reduce or eliminate many of these documents and checks. As part of the discussions, known in the UK as the EU “reset”, the UK has indicated that it may be willing to accept, as part of its domestic law, relevant elements of EU law relating to plants, animals and their derivatives (which would include animal feed). The UK has also indicated that it might also be willing (subject to limited exceptions) to agree that these EU laws will be subject to periodic amendment by the EU – a process known as “dynamic alignment”. It does not appear that the EU is willing to agree to the UK having any role in the development and enactment of relevant EU law, and the UK appears to accept that, under the arrangements, the final arbiter of the meaning and effect of the EU law in question will be the Court of Justice of the European Union.
Critically, if a new SPS is reached in these terms, it will, once again, make EU law of direct relevance to feed law practitioners in the UK, and could change the legal landscape for animal feed in a way which seemed unlikely following EU Exit.
Conclusion
The law relating to animal feed is complex and has developed over many years. The main elements of feed law are now made up of assimilated law. This is law which was previously EU law (or domestic law made to implement or enforce EU law) and which has now been made part of our domestic law. However, some purely domestic legal provisions remain, most notably provisions made by, or under, the Agriculture Act 1970 (AA 1970).
Regrettably, there has been no real attempt at a consolidation of the various feed law provisions which apply in the UK and finding the answer to a particular food law query can be a challenge. This challenge has been made all the more difficult by EU Exit, and the volume of secondary legislation which it generated. Nevertheless, the EU Exit legislation forms an important part of the feed law framework in the UK, and ensures that EU law continues to work in a new, exclusively domestic, setting.
We hope that this book makes the process of finding the relevant feed law provisions simpler, by explaining where the main elements of feed law can be found and the reasons why the legislation takes the particular – and sometimes unexpected – form that it takes.