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Mind the gap

Mind the Gap - Food Regulation

John Points, Michael Walker and Natasha Medhurst review the highlights of a joint meeting organised by IFST, Acumentia and VitalSix in Reading on 15 May 2018 on the regulatory implications of the UK exit from the EU. The focus was on practical implications of EU exit for the UK food industry, regardless of the eventual political settlement.

EU regulatory framework: fitness for the UK food industry

Michael Walker, Laboratory of the Government Chemist, set the scene by describing the current EU trade and regulatory framework.

Data from FoodDrinkEurope shows that the EU food and drink industry has the largest turnover of any manufacturing sector (€1,098bn, with a €30.1bn positive balance of trade) and is the global number one exporter and number two importer. EU27 exports of food and drink products from the UK (€31.3bn in 2016) were almost twice those to the US and three times the exports to China. The UK relies on EU27 as an export destination and sourcing market with the strongest trade links being with Ireland.

Food regulation in the EU has developed over many years within the ordinary legislative procedure (Figure 1). Generally, the European Commission (EC), after extensive consultation, makes a proposal for legislation. This may be at the instigation amendments (the law is passed), may reject them outright (the proposal is dropped), or – more commonly – may suggest further amendments. If the Council disagrees with Parliament’s amendments, then a ‘conciliation committee’ tries for joint text for a third reading. Thus, representative intervention at any of these many stages can derail the legislative process.

A successful outcome results in either a Regulation (binding across EU), a Directive (requires Member States to enact their own domestic legislation), a Decision (highly specific rules binding across the EU) or Opinions (non-binding). The Court of Justice interprets the law and settles legal disputes.

EU food law is now mature and settled, with a few notable exceptions including:

a) standardisation of precautionary allergen labelling (PAL) and harmonisation of enforcement of Regulation 1169/2011[1] Annex II non-compliance;

b) country of origin labelling;

c) food fraud, food crime, duel quality products;

d) enforcement cost recovery.

EU regulation evolves during a lengthy process, with all 28 Member States striving for consensus and removal of barriers to trade. It takes into account ‘political’ opinions as well as valuable contributions from EFSA, however the ambitious aim of having an EFSA risk assessment automatically accepted by all has never been fully achieved. Food is one of the most intimate and emotive areas of our lives.

Michael concluded that the largest global food trading blocs need continued harmonised regulations that ensure citizens’ safety, maintain trust, respect choice and stimulate growth.

Figure 1 The relationships between the main international and European institutions.

The UK relies on EU27 as an export destination and sourcing market with the strongest trade links being with Ireland.

Exporting to the USA

Andy Kerridge of Primority gave an overview of the US Food Safety Modernisation Act (FSMA) and its implications for UK companies desiring to export food to the US.

The FSMA puts the legal onus for food safety on to preventive controls. The US importer is accountable for ensuring that the UK exporter has a preventive control programme in place, which is overseen and subject to audit by the USDA (most meat and animal products) or FDA (most other foods).

This Foreign Supplier Verification Programme (FSVP) has requirements that are similar to, but separate from, other Global Food Safety Initiative (GFSI) recognised schemes, such as BRC Global Standards. There is an emphasis on preventive controls relating to supply chain, allergens, sanitation and process, which are considered under the same umbrella as Critical Control Points (CCPs) rather than being a HACCP prerequisite programme. The UK supplier site is required to use a Preventive Controls Qualified Individual (PCQI), who can be an external consultant, and to respond within 24 hours to FDA audit requests for documentary evidence of their control systems and effectiveness verification. There is a requirement for additional certification for high risk foods, but it is unclear yet what this will mean in practice.

There is a framework in place for Third Party Certification of UK sites for the FSVP, but it has yet to rollout. There is also a framework for a blanket company-wide approval under the fee-based Voluntary Qualified Importer Programme (VQIP), still to be rolled out.

Andy advised UK companies to deal with a US importer familiar with the new FSMA requirements, and to seek a PCQI, if they wished to export to the USA.

Food labelling within and beyond EU borders

On-pack labelling always needs careful compliance checks for the country of sale and may well need multiple label formats if sold in more than one country. Sarah Howarth, of Howarth Food Safety, gave an overview of the harmonised labelling requirements for food produced and sold within the EU. Labels must be printed in the local language and there is scope for Member States to impose additional requirements, such as public health messages or country-of-origin labelling of specific ingredients, but in general the labelling formats are highly standardised across the EU. As well as nutritional labels, this includes aspects, such as allergens, health claims and inclusion of genetically modified ingredients. The current system enables the free movement of safe and wholesome food across the EU. There are some areas not fully aligned, notably the authorisation of novel foods, botanicals and food supplements. The harmonised labelling format is open to modification and improvements, with planned changes including greater clarity in country of origin labelling, reviews on the presentation of nutrition information and the use of expiry dates with a view to reducing food waste.

Sarah also described the potential labelling changes that would be needed for UK-produced food sold in the EU, if the UK were to be treated as a ‘third country’. Amongst these would be the need to include the name/business name and address of the EU27 importer of food from the UK, and the need for more granular country of origin labelling than just ‘EU’ or ‘non- EU’. It is likely that prepacked foods would need separate labels for UK and EU markets. This gives the UK Government the discretion and opportunity to make changes to the UK label to support public health policies and campaigns, for example, teaspoon-count depiction of added sugars.

Cultural change and risk management

Simple legal compliance is not the only consideration when trading food internationally. To comply with the food safety regulatory framework of a trading partner often requires a complete cultural change. Changes in behaviour require carrying out an initial risk assessment.

David Brown, of FQC Solutions, cited the example of a multi-site Indian company looking to closer align their food safety controls to the EU. This change management was symbolised as the emotional elephant (doer) versus the change driver (planner). EU general food law has a structured approach to risk assessment, risk management and risk communication underpinned by strong science and this is as much a cultural approach as a Quality Management System. As well as new procedures and local Standard Operating Procedures, the implementation of ‘EU compliant’ food safety controls also requires a significant internal communication programme, a rollout of training through train-the-trainer courses and an 18-month change management programme that still respects the existing corporate culture and brand ethics.

The overall message was to be aware of business and technical risks, implement risk analysis, assessments and mitigation plans, and ensure business continuity to protect assets, people, brands and quality.

Trade agreements and the Codex/WTO-based Food Regulatory Framework.

Dominic Watkins of DWF, specialising in food international trade law, spoke on Brexit: to the land of hope and glory? He explained the typical framework of a Trade Agreement. Any future Trade Agreement, e.g. between UK and EU, or UK and US, would be subject to negotiation. But, in practice, they follow a standard format and the likely template is already written (excluding reduction or waiving of World Trade Organisation (WTO) tariffs that are open to negotiation, and customs cooperation to mitigate the extent of border controls). It would be similar to the US-Canada agreement and to the aborted Transatlantic Trade and Investment Partnership (TTIP) text. The UK is in a weak bargaining position and likely to prioritise negotiating concessions for industries, such as financial services or automotive manufacturing, above those for the food industry.

WTO rules only allow import restrictions to be based on scientific evidence relating to food safety, not on consumer preferences. International scientific consensus is provided by Codex. There are a few ‘cause celebres’, where the EU has previously negotiated import restrictions, despite Codex raising no scientific safety concerns and the US insisting that the issues are purely consumer preference e.g. import of beef from cattle treated with oestradiol growth hormone or chlorine sanitised chicken.

Dominic also stressed that the UK government’s intent is to maintain continuity and mimic the current arrangements with the EU, including trading of goods and movement of labour, throughout any Brexit implementation period. There is publicly-available information on the UK’s preferred outcomes and negotiating red lines, both in written statements from government departments and on the EU’s website (e.g. Figure 2). The UK’s intent is to negotiate continued inclusion within the EU’s Free Trade Agreements until such time as the UK negotiates its own. Hence any changes during the implementation period, which is likely to be protracted, can only happen very slowly. Dominic cited Greenland, which left the EU in 1984, taking nine years to discuss and agree the single issue of fishing rights.

Another potential unintended consequence highlighted was the risk of legal divergence between UK countries. In the food industry, many returned legal powers will go to devolved administrations rather than central UK government. Scotland, particularly, has signalled intent to move faster than Westminster on some aspects of food law and guidance related to public health.

Brexit presents opportunities as well as risks. Areas that seem ripe for improvement include rules about on-pack health claims and for food legislation to better support nutrition or food waste public policy.


The message of the meeting was that food businesses should be planning, now, for the practical and detailed implications of different Brexit scenarios. Prepare for the worst but hope for the best. In the meantime, there are existing opportunities for international trade that can be exploited.

John Points is an independent consultant, advising on testing and assurance for food contaminants and authenticity, and is a Director of Acumentia.


Michael Walker is a consultant scientist and is Consultant Referee Analyst to the LGC Government Chemist programme.


Natasha Medhurst is Scientific Affairs Manager at the IFST.


A joint meeting organised by IFST, Acumentia and VitalSix was held on 15 May 2018 at the new Thames Valley Science Park, Reading, entitled EU vs. Non-EU Food Regulation: Mind the Gap. The evening meeting comprised a short series of presentations followed by a lively discussion.

Presentations from this event are available at:


1. Regulation (EU) No 1169/2011 of the European Parliament and of the COUNCIL of 25 October 2011

on the provision of food information to consumers,

2. Slide presented by Michel Barnier, European Commission Chief Negotiator, to the Heads of State and Government at the European Council (Article 50) on 15 December 2017, accessed 3 July 2018

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