This article is reproduced by kind permission of Burges Salmon
How the UK’s food safety and integrity regime might change post-Brexit
We consider the UK’s current food safety and security regime and how this may be affected by the UK’s departure from the EU in March 2019.
The UK has enjoyed decades of access to an abundant amount and wide variety of safe food, which has been instrumental in ensuring not only its citizens’ health but also consumer confidence.
The UK and EU’s safety regimes and food supply chains are tightly interwoven. As the UK prepares to leave the EU, it will therefore be vital for public health and economic reasons to ensure that any disruption is minimal and to maintain the same level of food safety.
Food safety and integrity: the current regime
The central legislation governing food safety in the UK is the Food Safety Act 1990 (FSA 1990), which requires that all food businesses supply food that:
- does not injure health
- meets consumer expectations in terms of nature, substance and quality
- does not mislead the consumer in terms of presentation or description.
This legislation was followed in 2004 by the General Food Regulations and the Food Safety Act 1990 (Amendment) Regulations, which made substantial changes in order to implement the main EU food protection measures of Regulation (EC) 178/2002.
The 2002 EU Regulation places responsibility on food (and feed) business operators to ensure that the products under their control satisfy the requirements of relevant law at every stage of production, processing, manufacture and distribution.
(EC) 178/2002 also established rules relating to food and feed traceability within the EU to manage risk in the wake of the BSE and dioxin scares in the 1990s. Alongside these practical requirements, the Regulation established the European Food Safety Authority (EFSA) and provided for penalties to be imposed by Member States for breaches of food and feed law.
The UK’s Food Standards Agency (FSA) and other UK authorities also currently work closely with EFSA, the European Commission, Europol and other EU bodies, as well as other member states’ Food Safety Authorities in connection with the detection, notification and prevention of food safety incidents and food crime.
This international co-operation is key to the rapid communication of food issues, and was, by way of an example, central to uncovering the horsemeat scandal which came to light in 2013.
What will the UK’s regime look like post-Brexit?
Unless the government undertakes a wholesale review of the UK’s current Food Safety regime post-Brexit, the FSA 1990 should not be affected and food businesses will need to continue to fulfil its requirements. The European Union (Withdrawal) Bill being debated in Parliament currently provides that the UK will adopt all existing EU legislation into UK domestic law on the day following Brexit (29 March 2019).
Regulations such as EC 178/2002 will then automatically become part of UK law, but the UK government will be able to amend, repeal and improve individual laws as necessary after this date. However, once the UK leaves the EU the UK will no longer be required to submit to the EFSA’s or the European Commission’s jurisdiction.
If the UK chooses not to adopt the EU’s standards post-Brexit, the rules of the Codex Alimentarius Commission (the “Codex”), which are set by the World Health Organisation and the UN Food and Agriculture Organisation, would apply.
The Codex’s rules are generally less stringent than EU standards, leading to a divergence between EU and UK food safety requirements (although any UK food business wishing to export to the remaining 27 EU states will still need to continue to meet current EU requirements).
One recent example of the divergence between the EU’s and other countries’ food safety that has been highlighted by the media is chlorine-washed chicken from the US. US food safety rules allow food producers to wash poultry in a chlorine solution to kill harmful bacteria. The EU currently bans this practice and the import of such meat on the grounds that it fears it could result in food producers adopting a less stringent approaches to food hygiene and animal welfare overall.
The UK government has not, so far, indicated that UK food safety regulations will change after Brexit. However, US Commerce Secretary, Wilbur Ross, recently told business leaders at the Confederation of British Industry annual conference in London on 6 November 2017 that changing food safety regulations would be a “critical component of any trade discussion,” between London and Washington, and that the UK should take steps to remove “unnecessary regulatory divergences” with the US. The UK may therefore be required to allow the import of such products if it seeks to secure an independent trading relationship with America
Views from industry
The UK government has launched a consultation into the implications of Brexit to examine how a potential trade deal could affect farmers, food processors and consumers.
Contributors to this have repeatedly stressed the need for UK food safety standards to be maintained. There is also concern that if importers from countries that are able to produce food are permitted to import their goods to the UK at a reduced cost following Brexit, UK producers may find it difficult to compete with such products. If safety standards are lowered for imports, UK exporters could therefore be forced to follow suit to remain competitive.
Another key concern is the issue of what will happen at the UK’s border crossing points. If the UK begins to trade more widely outside the EU, customs provision for foodstuffs will need to be scaled up to ensure minimal delays. Where fresh produce is concerned, swift transit is essential.
A recurring theme of the inquiry is therefore how the government proposes to upgrade existing customs infrastructure to avoid delays in the transit of fresh produce. The matter is addressed in the government’s ‘Future Customs Arrangements: a future partnership paper’, where two alternative models are considered.
The first is a highly streamlined UK-EU customs system that places as few additional requirements on EU trade as possible and makes use of ‘technology-based solutions’ to make it easier to comply with procedure.
The second is a new customs partnership with the EU, where the UK mirrors EU import requirements if the final destination is the EU. The October 2017 Customs Bill again envisages a technology-based solution to enable advanced notification of consignments to port authorities and smooth flow through customs in both directions. However, it remains to be seen how the solutions set out in the Government’s papers will work in practice.
Potential technological solutions
In response to growing fears about food safety and integrity, a number of companies have begun to offer ‘Blockchain’ technology platforms to food retailers to ensure continuous traceability from farm to fork.
This involves members of an authorised community of food producers and suppliers participating in a ‘chain of custody’. The chain, which is stored on a secure database, consists of specific pieces of information (‘blocks’) about any given foodstuff at every stage of production, with each block containing a time stamp and a secure link to the previous block.
At the cutting edge of this technology is the possibility of introducing natural DNA markers into the food itself, that do not alter the food, but allow its content to be traced and verified. The aim is to achieve transparency at every stage of food production, to prevent adulterated goods entering the market, ensure the integrity of the product and to build consumer trust.
Maintaining the current high standard of food safety and integrity in the UK will be a challenging but important goal post-Brexit. Alternatively, if different standards are introduced, consumers within the UK may need to make a choice between paying more for the food they have become accustomed to, and accepting food that has been prepared using different and potentially less stringent standards.
It is encouraging that the government has launched the Trade in Food Inquiry 2017 to gain insight into the issue from industry. Businesses should continue to lobby and raise any concerns they have to ensure their voice is heard.
Oxford Farming Conference 2018
Burges Salmon is the sponsor of the Science Lecture at the 2018 Oxford Farming Conference. The inaugural Science Lecture will be delivered on Thursday 4 January 2018 by Professor Chris Elliott, who is well known to many in the food sector as the author of the ‘Elliott Report’ which examined the integrity of the food supply chain in the wake of the horse-meat scandal which came to light in 2013.
Professor Elliott will be speaking about the controversial issue of sustaining global food supply to the rapidly growing world population and challenge the audience with ideas about the future of global food security and the role we have to play in it.
This article was written by Rebecca Houlden.
 Cited by Richard Partington, ‘Trump adviser Ross says UK-US trade deal will mean scrapping EU rules’, Guardian 6 November 2017.