Foodlaw-Reading
Dr David Jukes, The University of Reading, UK
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DEFRA Consultation, 16 October 2018
This consultation has been published on the government website at: https://consult.defra.gov.uk/food/amending-domestic-food-laws/ The main issues relate to the future controls on honey and natural mineral waters. Suggested options for these are provided in the on-line questions but are reproduced below. The consultation closes on 13 November 2018.
General Overview
1. Introduction
Defra wishes to consult on certain amendments to food legislation, which are required to ensure that a range of provisions can continue to operate after the UK has left the EU. The amendments would apply to certain England-only regulations (although Scotland, Wales and Northern Ireland have their own similar provisions in place). Where there are options on what amendments should be made, they are described in this consultation. You may wish to respond to all or some of the questions posed.
2. Context
Following the UK’s referendum to leave the European Union the UK Government has been working to secure a deep and comprehensive free trade deal with the European Union.
Alongside this work Defra – like other Government departments – has an extensive programme of work focused on preparing for a range of scenarios to make sure we are ready for the point when we leave the EU. Leaving the EU will change things, but on the day we leave food producers and retailers will still be able to trade, and we will continue our high standards of animal welfare and biosecurity protections.
We are working with other government departments, Devolved Administrations, partners, and businesses, so that vital areas such as food, farming and the environment are at the heart of Brexit planning, and we all understand the challenges and opportunities that government and industry are facing in the coming months to ensure a smooth transition.
Overall, Defra has more than 40 EU Exit projects. The plans for each project prepare the country for both a range of negotiated outcomes and a 'no deal' scenario for the relevant policy areas affected by the UK leaving the EU.
The amendments proposed and options explained in this consultation would apply in the event that the EU and the UK were not to agree a partnership arrangement and common approach to food legislation after the UK leaves the EU either on 29th March 2019 or at the end of an implementation period.
Simple amendments would be sufficient to enable many of the provisions contained in the relevant regulations (listed in section 3) to work after EU exit, and we are not specifically asking for your views on those proposed amendments which would be made only in order to make such minor corrections. However, in a few cases more substantial changes are required in order to reach workable solutions. Where options are available, they are described in this consultation.
3. Regulations to be amended
In order to make certain domestic (England only) food legislation operable after the UK has left the EU it is proposed to make amendments to the following regulations:
Most of these regulations apply only to products sold in England. Similar regulations are in place in Scotland, Wales and Northern Ireland.
Most of the proposed amendments are minor technical fixes, e.g. concerning the correction of references to the EU or Member States, however more substantial policy options need to be considered for honey and natural mineral waters legislation.
Scotland, Wales and Northern Ireland will be having similar considerations with regard to their own regulations. We appreciate that many comments and issues will be relevant across the UK and will share responses with the Devolved Administrations unless you ask us not to.
The Honey (England) Regulations 2015 require that honey packaging must show the country of origin of the honey. Alternatively where the honey is blended from more than one country of origin it can currently be labelled as ‘EU’, ‘non-EU’ or ‘EU and non-EU’ (or else list the individual countries of origin).
However, once the UK leaves the EU, either on 29th March 2019 or at the end of an implementation period, using such EU-focused terminology will not be appropriate in UK legislation.
Options:
Option 0 – no change
If current rules for showing the honey’s country of origin were retained, honey packaging would continue to be required to indicate whether the honey originated from EU countries (of which the UK would not be one) despite the UK having no formal link with the EU. Only some blends containing UK honey would require label changes in relation to origin labelling.
Option 1 – ‘a blend of honey from more than one country’
The term ‘a blend of honey from more than one country’ could be shown on the label where appropriate. This option might increase the labelling burden on producers initially, but it is considered a less burdensome option for UK businesses than option 2. Only one form of words would be required for all blended honey “from more than one country”, thus making it easier for relevant food businesses. Consumers will still be aware that the honey consists of a variety of honey from differing origins. However, it would not enable consumers to identify blends of European honey from non-European blends, but businesses would be free to supplement the label with additional information. For these reasons use of the term ‘a blend of honey from more than one country’ is Defra’s preferred option for indicating country of origin information on honey blends in future.
Packers can still choose to list all of the countries of origin information in blends should they wish.
Option 2 – ‘UK’/’non-UK’
Replacing the term EU with UK would at first consideration appear to be the obvious solution: Use of the terms ‘blend of UK and non-UK’ or ‘blend of non-UK’ on honey labels. However, this may be impractical because UK origin honey is generally sold as a single-origin product and rarely blended. It could then therefore prove confusing for UK consumers as most blended honey on sale in the UK would be using the “non-UK” option.
This option would also increase the labelling burden on producers by requiring new labelling on blended honey from more than one country currently using the ‘EU’/’non-EU’ wording (as opposed to listing countries of origin), prove costly to business where no UK-blend alternatives are available, and could suggest an inferior product.
The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007 implement EU legislation which requires natural mineral waters (NMW) to go through a process of recognition to prove that they have the necessary composition and characteristics to be sold and marketed as natural mineral waters in all EU Member States.
Recognition is carried out by individual Member States in line with EU rules. Currently, 63 natural mineral waters (NMW) (60 domestic NMWs and three NMWs from current third countries) are recognised by the UK, as a result of having undergone a full recognition process in the UK.
There is a need to amend our domestic rules as they are written once we leave the EU on 29th March 2019, whether with a future economic partnership agreement or in the context of a no deal scenario. This is because if we were to leave the regulations un-amended, the wording of the current rules in the new context would bring unintended consequences:
The UK government would have no future say on what can be or otherwise traded as NMW in England.
Welsh, Northern Irish and Scottish NMWs could no longer be traded in England since they are only recognised in England by virtue of being defined as such by the European directive which will no longer be a legal text in those territories.
Consequently whatever happens, to ensure continued operability, the regulations must be changed and the text amended to fit the UK’s new status and to fit in with the new agreement or provide for a no deal scenario.
The EU Commission has indicated that unless a future trade agreement or economic partnership agreement provides otherwise, these NMWs that had their recognition process undertaken by the UK will no longer be recognised in the EU market after the UK leaves the EU. (Please see Notice attached to this consultation.)
The English legislation provides for third country natural mineral waters individual applications to be made to the Secretary of State. The process involves providing a large and complex amount of data, which in most cases needs to be gathered for up to two years prior to application. The recognition lasts for five years after which the producer must renew their recognition under a simplified process based on information supplied by the third country authorities. In a scenario where the EU and the UK were not to agree a partnership arrangement and common approach to NMW recognition, the English rules in the field of the exploitation and marketing of natural mineral waters would apply to the EU member states as third countries.
In 2016 the UK imported £116.3m worth of natural mineral waters from the EU. French brands Evian and Volvic are respectively the top selling and third bestselling natural mineral waters brands in the UK.
Options:
Option 0 – Rolling over of recognition of existing EU natural mineral waters.
In this context, for the UK’s treatment of natural mineral waters currently recognised in other EU countries, Defra wishes to propose a unilateral continuity approach in line with general cross governmental views on unilateral continuity and stability for businesses and consumers.
Rolling over of recognition of existing EU natural mineral waters, allowing for maintaining the status quo as regards existing natural mineral waters, wherever in the EU the recognition process took place, would reflect that recognised NMW were safe at the time of EU Exit and therefore there is no reason to assume they are not after EU Exit.
However, the continuation of that arrangement would only be guaranteed for the first six months after EU Exit and not be guaranteed in perpetuity. Further amendments to the Bottled Water Regulations may be made to withdraw the rolled-over EU recognitions at any given time after those first six months, depending on discussions with the EU and considerations at the time, always after a given period of notice.
If a decision were indeed to be made for recognition of EU NMW to be withdrawn, after the initial six months plus the notice period, it would then be necessary for the water to be newly recognised in England by making an ordinary application under the Bottled Water Regulations.
This option will remove (or delay) the need for NMW that had their recognition process undertaken elsewhere in the EU to undergo a UK recognition process, ensuring continued stability in the market, which could otherwise effect market prices and consumer choice and confidence immediately after exit.
At the same time, this option would give the UK Government more time for consideration and an added period of flexibility to decide if and when to require the producers of NMWs that had their recognition procedure take place elsewhere in the EU to make representations of their safety and quality conditions to the UK Government. This would enable the UK Government to maintain full control of the recognition, quality and safety of NMW that had their recognition procedure undertaken elsewhere in the EU.
At the current time a unilateral continuity approach to NMW recognition is in the best interest to the UK. It would also give businesses time to adjust and would keep a stable market.
Option 1 – Removing the recognition for EU recognised natural mineral waters from day 1 after the UK’s exit from the EU
In the case that NMW that had their recognition process undertaken elsewhere in the EU this option would mean that EU NMWs would no longer be recognised in the UK immediately after exit from the EU. These NMWs would need to undergo a full application process in the UK to secure recognition before they could be legally sold as NMW in the UK.
This option is not in line with the government’s position on maintaining continuity for businesses, and we do not recommend it at this stage; this option would be detrimental to the UK through:
Affecting consumer choice of natural mineral water (as many as one in every three bottles of NMW sold in the UK are imported from the EU).
Fluctuation in prices for the consumer, due to market forces.
Market changes which could also move the consumer to choose a different category of water, i.e. spring or bottled drinking water or tap water, or to a different beverage, such as flavoured waters and other soft drinks, affecting therefore all NMW producers, domestic and imported.
Option 2 – Rolling over of recognition of existing EU natural mineral waters for five years
For NMW that had their recognition process undertaken elsewhere in the EU, this option proposes continued recognition in the UK for a period of five years after the UK leaves the EU. They would be required to undergo a full recognition process in order to continue to be sold in the UK at the end of the five year period.
Currently non-EU country producers are required to renew their recognition after five years.
The five year period would be embedded in regulations and would not be able to be changed.
This option would delay the need to process applications by five years ensuring stability in the market and market prices, and consumer choice and confidence in the interim. The UK will be leaving the EU and will want to make its own decisions on NMWs after the initial period of adjustment and ensuring continuity for businesses.
On the other hand, this option – while enabling UK Government to maintain full control of the recognition, quality and safety of the EU natural mineral waters – would introduce a significant delay by prescribing a long fixed term before such a Government decision could be taken, which is not recommended at this stage.
