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Brexit means end for EU food law

Stuart Spear21/12/2016 - 16:02

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UK will have to look outside the EU  over food law
UK will have to look outside the EU over food law

The food industry along with regulators are being urged to start exploring World Health Organisation rules covering the international food trade as the UK moves closer to triggering an exit from the European Union.

The warning came from a group of food experts who met at City University to discuss the future of UK food policy in a post Brexit world.

While the nature of the UK’s departure is unclear speakers acknowledged there was around a 70 per cent chance of the UK ending up outside the European Economic Area (EEA) and the European Free Trade Association (EFTA) and so outside the jurisdiction of European food law. Norway, Iceland and Liechtenstein as members of EFTA have kept access to the internal market.   

UK being outside the EEA and EFTA will mean that Codex Alimentarius, the international food code set by the WHO and the United Nations, will become the international food standard by which UK food producers, processors and national food control agencies would have to operate.

Speaking during a question and answer session former government food policy advisor Prof Tim Lang said that there is every likelihood that the UK would be unable to pull off a deal with the EU, ‘in which case Codex will no longer be peripheral but will become fundamental, which means we will all be dusting down our Codex procedures.’

He warned that the change will mean a dramatic learning curve for food lawyers, industry and civil servants as they come to grips with what is recognised as a highly complex set of rules that have evolved since the early 1960s.

Prof Lang went on to raise concerns about whether there was the knowledge and experience in the UK to make the transition. ‘The problem is that as a member of the European Union we have dealt with Codex as part of the EU for the last 20 or 30 years, which raises the question of whether we have the capacity.'  

He added: 'The British state is incredibly weak when it comes to food law and that troubles me greatly.' 

Also, speaking at the conference was Brian Kelly, a legal partner in the London Life Sciences Group, with an expertise in EU food and drug regulatory law. He told the audience that while there would be great upheaval there may also be opportunities for the UK in a post Brexit world, particularly in the field of novel foods and innovative health foods.

These are both areas of food development that have hit a bureaucratic brick wall under European regulatory controls. Mr Kelly told his audience that in the 20 years or so that novel food regulations had been in place there had only been around 90 novel food approvals across the entire EU. One serious constraint is that under EU rules the cost of bringing novel foods had been so prohibitive as to exclude small to medium enterprises where much innovation stems from.

Equally, the health claim regulations that are supposed to incentivise research and development have made approval highly bureaucratic to the point where over 10 years there have only been ‘five or six innovative health claims approved off the back of genuine innovative proprietary data, which is quite shocking,’ said Mr Kelly.

Delegate also heard that the next milestone in the UK’s departure from the EU following the triggering of Article 50 will be the enactment of the Great Repeal Bill, the statutory instrument that will give Parliament the power to absorb parts of EU legislation into UK law and scrap other parts.

The statutory transition is already raising questions about what opportunities there will be for food campaigners and lobby groups to influence changes in UK legislation.

Delegates heard that at present the instinct amongst civil servants at Defra, FSA and DH is to take a ‘copy and paste’ approach and so just dump all existing legislation over and then later sift through what is needed and what is not.

‘We have a different system of legal principle in the UK where if something is not prohibited then you can do it,’ explained Mr Kelly. ‘It is a different concept on the continent where you almost need to be told you can do something for it to be legal, that could be an opportunity to cut through a lot of unnecessary bureaucracy.’  

Delegates also heard that the word coming out of Whitehall is that as lawyers look at the wording of the Great Repeal Bill, the legislation has grown from a handful of pages into an increasingly substantial document.

One view that appears to be gaining traction in Whitehall is that with 40 per cent of EU legislation impacting on food law there may have to be a new food act to tighten up the legal transition out of the EU. 'We should not get too fixated on the repeal bill, it is what is behind it, what comes after it and what will allow it to take life that is important and it is something that we are not giving enough attention,' said Prof Lang. 

Defra is also working on the possibility of having to produce a new environment act. Defra Secretary Andrea Leadsom, appearing before the Environment Audit Committee in October, admitted that at least a third of EU environmental law will not easily transpose into British law. It is estimated a similar proportion of EU food laws will prove problematic.


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