Photo of Katia Merten-Lentz

When it comes to food and feed, it’s no secret that the Brexit deal has given rise to come big legal questions. What has changed? Which rules remain the same? Will commonalities continue?

 

Here, Katia Merten-Lentz lays out a general background into how the UK’s departure from the EU has changed Britain’s legal landscape. She also covers current legislation into authorisations for food additives across England, Scotland, Wales and Northern Ireland.

 

General Background:

The European Union (Withdrawal) Act 2018, as amended by the European Union Withdrawal Agreement Act 2020, created a new category of domestic law called ‘Retained EU Law’, which includes, among others, EU derived domestic legislation – e.g.: UK national law adopted to implement EU Directives, and direct EU legislation – in particular EU Regulations.

The EU (Withdrawal) Act 2018 converts existing EU law into domestic law and preserves UK laws adopted to implement EU obligations, meaning that, generally, the same rules and laws continue to apply. However, a significant proportion of retained EU law contains some provisions that do not function effectively or are otherwise deficient now the UK leaves the EU. For this reason, the European Union (Withdrawal) Act 2018 includes a power to enable ministers to correct problems arising from the withdrawal (e.g.: reference to EU common market or to EU Member States), by way of making the EU Regulations UK Regulations by means of statutory instruments (SI). However, in doing so, there might be some mistakes and oversights in the correcting SI. Also, the reading of the existing acts is difficult, as no consolidated version of the relevant acts has been published by the UK government.

 

UK Food additives authorisation

 Within the UK, food additives are subject to

  • Retained EU Regulations (EC) Nos. 1333/2008 on food additives and 1331/2008 establishing a common authorization procedure for food additives, food enzymes and food flavoring and
  • The Food Additives, Flavourings, Enzymes and Extraction Solvents (England) Regulations 2013, which provides for the execution and enforcement of the EU rules.

In accordance with the EU (Withdrawal) Act 2018 general provisions, EU Regulations (EC) Nos. 1333/2008 and 1331/2008 was converted into UK domestic law, subject to corrections made by The Food Additives, Flavourings, Enzymes and Extractions Solvents (Amendment etc.) (EU Exit) Regulations 2019.

The UK authorization procedure for new food additives is very similar to the EU one : only the competent authorities changes. Decisions updating the list of authorized food additives are taken by the relevant ministers / governments i.e. :

  1. in relation to England, the Secretary of State;
  2. in relation to Wales, the Welsh Ministers;
  3. in relation to Scotland, the Scottish Ministers;
  4. in relation to Northern Ireland, the Northern Ireland devolved authority.

and scientific opinions are provided either by the Food Standards Agency (for England, Wales and Northern Ireland) or by the Food Standards Scotland for Scotland.

The risk assessment is carried out with the requirements of retained EU law and the guidance previously developed by EFSA.

An application service has been developed by UK to submit applications for authorizing regulated food products like food additives, novel foods etc : here. A summary of the pre-market approval procedure for food and animal feed products and processed requiring authorization is provided here.

The FSA also published several guidance documents: