Foodlaw-Reading
Dr David Jukes, The University of Reading, UK
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DEFRA Consultation Outcome, 29 July 2021
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Amending domestic food legislation in England Summary of consultation responses and government response The full document is available on this site (click on image). Provided uder the Open Government Licence. The original document was accessed from: |
The following are the 'Background' and 'Government Response' sections taken from the main publication:
Background
1. Since the UK has left the EU, and the transition period has ended, government departments have continued to deliver an extensive programme of work that will ensure the UK is well equipped to operate and meet its obligations in these new pcircumstances.
2. Defra is 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 establishing the UK’s new international and trading position while ensuring that we all understand the challenges and opportunities that government and industry are facing at this time.
3. Defra held a consultation to request public comments/opinions from industry, stakeholders and consumers about amendments to certain domestic only pieces offood legislation which contained mutual recognition clauses as part of the conditions of our membership of the EU.
4. The Brexit legislation required, called a statutory instrument (SI), containing thenecessary changes is referred to as The Food (Amendment and Transitional Provisions) (England) Regulations 2021. It makes certain amendments to domestic food legislation as it applies in England, which are required to ensure that provisions previously required to comply with EU principles on market access are removed in rder to comply with World Trade Organisation (WTO) Most Favoured Nation (MFN) rules. Under those rules, no preferential access can be given to specific countries outside the remits of free trade agreements.
5. Food policy is a devolved matter (power is dispersed) and Scotland, Wales and Northern Ireland have their own analogous rules in place and are considering similar changes.
6. Over the course of developing each policy option over these past few years, the government met frequently with interested parties. Open discussions enabled key stakeholders to voice their views that were taken into consideration when drafting the policy options.
7. The Consultation on amending domestic food legislation in England was carried out through an online survey on Citizen Space and ran for six weeks from 8 February2021 until 22 March 2021. This was a shorter duration than is normal due to the limited time available to make necessary changes as soon as possible after the end of transition period.
Government response
After due consideration of the consultation responses, potential effects each option might have on UK consumers and businesses and the government position that all imports should in future meet UK standards the following amendments were considered appropriate to be made into legislation in the Food (Amendment and Transitional Provisions) (England) Regulations 2021:
Recognition clauses were removed from the following regulations:
This will ensure the regulations remain compliant with WTO MFN rules, while maintaining UK food compositional standards. Products from all third countries including EEA countries will therefore be subject to the same rules as domestic products.
A period of adjustment until 30 September 2022 is also being provided for the recognition amendments applying to bread and flour, fruit curds and mincemeat and spreadable fats. A period of adjustment initially until 12 December 2021 is being provided for the amendment applying to products containing meat. The government is planning to further amend the Products Containing Meat etc. (England) Regulations 2014 to ensure that they remain in force beyond their current expiry date in December 2021, and also to include a period of adjustment until 30 September 022 at that time.
Additionally, an exemption to the fortification requirement in the Bread and Flour Regulations 1998 has been introduced which allows the production and sale of unfortified wheat flour in England if it is for export or used in products destined for export and the import of unfortified flour if it is used in products for export. This will ensure continued access to unfortified flour for businesses preferring to incorporate unfortified flour in products they make for the export market while also ensuring that flour sold for domestic consumption contains specified nutrients, thus continuing to meet public health objectives. The additional exemption will apply from the coming into force date of the amending regulations.
It is recognised that removing the recognition clause in the Bread and Flour Regulations 1998 will impact a small number of businesses which currently import unfortified flour. However, the additional exemption will now enable businesses to keep importing unfortified flour from the EEA for export purposes as well as giving them the additional option of sourcing unfortified flour produced by English millers. In relation to new opportunities for English flour millers, the exemption will allow them to produce unfortified flour– as long as that flour or the products produced from it are subsequently exported.
The government is planning to review wider changes needed on bread and flour at a later date.
Since food compositional standards policy is devolved, amendments to similar analogous regulations in Scotland, Wales and Northern Ireland would need to be made separately by the Devolved Administrations. Since those changes would not be made at the same time, and in Northern Ireland some may not be made at all so as to maintain compliance with the Northern Ireland Protocol, the relevant compositional rules would differ across the UK nations at least for a time. However, the United Kingdom Internal Market Act 2020 (UKIM) has introduced new market access principles – including for mutual recognition of goods – which would mitigate potential impacts of divergent regulation on trade within the UK.
The effect of UKIM Act provisions is that products which are brought into England from another part of the UK may not be required to meet the English regulations in these amended regulations. In respect of the amendments made by this SI, the UKIM mutual recognition principle is expected to have the following effects: goods produced in, or first imported into, Scotland can continue to be sold in England, as long as they meet relevant regulations in Scotland. Equally, a good produced in, or first imported into, Wales may be sold in England if it meets relevant regulations in Wales. Goods brought into England from Northern Ireland (NI) may be sold here if they are qualifying NI goods as defined in section 47 of the UKIM Act. Conversely, goods produced in or imported into England which meet the regulations as amended by this legislation may continue to be sold in Scotland and Wales. In accordance with NI Protocol obligations, products originating in England (or Scotland or Wales) will have to comply with relevant rules in force in NI to allow them to be sold in NI.
For the news item on this site relating to the consultation, see: 8 February 2021 COMPOSITIONAL STANDARDS – DEFRA Consultation on amending certain domestic food legislation in England
