Issue 130 brexit and food regulation

PUBLIC HEALTH

THE POTENTIAL INFLUENCE OF BREXIT ON FOOD REGULATION Michèle Sadler RNutr Rank Nutrition Ltd Michèle is Director of Rank Nutrition Ltd, which provides nutrition consultancy services to the food industry.

Michèle has a BSc in Nutrition (University of London), a PhD in Biochemistry and Nutritional Toxicology (University of Surrey), and is a Registered Nutritionist.

For full article references please email info@ networkhealth group.co.uk

As we are constantly reminded by the media, leaving the EU (Brexit) is not an easy task and it is taking time to extricate the UK from the EU. A key issue is the likely impact of Brexit on UK food regulation, such as labelling, claims and food safety. This article outlines some of the implications.

For many years, the EU has been working towards harmonised laws and legislation because, in principle, this benefits trade between Member States. In preparation for Brexit, the government will transpose existing EU laws into UK laws (Withdrawal Bill). Initially, this will ensure minimal changes for consumers and industry so that the supply chain should continue to function seamlessly from the day we leave. However, as food supply is a heavily regulated area, transposing EU food law is legally complicated and a major challenge; this is being overseen by the Department for Environment, Food and Rural Affairs (DEFRA).

Longer term, there is potential for regulatory divergence between the UK and the EU. The implications for food safety, health claims and food labelling will not be fully clear until the type of relationship that will exist between the UK and the EU post Brexit is decided, as this will determine the future scope for UK regulation to diverge from that in the EU.1 Divergence will have advantages and disadvantages for consumers and businesses. A down side for businesses which market products in both the UK and the EU will be additional costs and complexities of complying with two sets of regulations. However, the opportunity for the UK to make new, or revise existing laws will be an

advantage, particularly in controversial areas such as the regulation of health claims for example.

REGULATORY FUNCTIONS

In addition to harmonisation of EU laws, the EU performs a number of regulatory functions on behalf of Member States. The European Food Safety Authority (EFSA) is an independent body that undertakes risk assessments (e.g. the safety assessment of food additives) and issues advice and opinions; for example, on the scientific substantiation of health claims. Functions of the EU Commission and Council include alerting Member States to food safety threats, authorising health claims and taking risk management decisions.

Post-Brexit, the UK will need to bring these regulatory functions back within the UK and ensure that an effective, robust regime is in place from the date we leave. This requires early decisions as to how such regulatory functions should be managed - what arrangements should be put in place of EFSA, for example.

FUTURE UK APPROACH TO FOOD REGULATION

The role of the Food Standards Agency (FSA) is to protect public health and other consumer interests in relation to foodstuffs. Post-Brexit, there is potential for the FSA to undertake a number of

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PUBLIC HEALTH tasks currently performed by EU institutions to ensure the delivery of safe food and to maintain consumer confidence.2 In relation to food safety, a significant increase in scientific and other capabilities will be required for risk assessment and risk communication. However, ministers and Parliament will need to decide how the government should take risk management decisions post-Brexit.

Through its strategic plan for 2015-2020, the FSA is already on a path to modernise delivery and enforcement of its regulatory regime. The UK’s decision to leave the EU has put this into sharper focus and plans are being developed to allow for different outcomes of the negotiations.3 Leaving the EU is expected to change patterns of food production, trade and consumption, such that a flexible and responsive regulatory system needs to be in place.3 The FSA aims to deliver a new regulatory model for food by 2020 that ensures a sustainable approach to food safety regulation and that can flex and adapt to future circumstances. It is proposed to have a ‘Permit to Trade’ placed on all businesses, with a digitally-enabled approach that makes it easier for businesses to get the information and guidance they need to comply with standards and regulations.3 CONSUMER INSIGHT

To help with its planning, the FSA conducted a number of online surveys and consumer focus groups between October 2016 and January 2017 to understand how consumers perceive such issues.4 The results show that consumers are generally unaware of the extent of EU involvement in food law. Consumer concerns about the UK’s decision to leave the EU include price increases, availability and product shortages, lower quality of food and having different regulations to the EU. POTENTIAL FOR FUTURE REGULATORY DIVERGENCE

Once the UK has left the EU, there is potential to make improvements to certain regulations, in order to make them more workable.5 However, 38

divergence from EU regulations is for the long term and will depend on government priorities.

Regulation of health claims In the area of health claims, it would be advantageous to consumers for claims to be expressed in more understandable language, with less scientific wording than is currently the case. For businesses, a different approach might create opportunities for the UK domestic market, as research suggests that the EU health claims regulation has stifled innovation.6,7 Nutrient profiles, that would restrict the use of claims on products high in saturated fat for example, have not yet been agreed in the EU, though they were due to be set by January 2009.8 Leaving the EU could potentially allow the UK to develop its own criteria and rules for the implementation of profiles for the benefit of consumers.

A more immediate reason for divergence potentially, relates to the regulation of ‘botanicals’ (food supplement preparations derived from plants, algae, fungi and lichens).

If as part of its regulatory review8 Europe agrees changes to the Nutrition and Health Claims Regulation5 before Brexit, these changes may be implemented in the UK. However, if Europe agrees changes after Brexit, this could result in early divergence between the regulation of health claims in the UK and the EU. Longer term is the issue of trademarks and brand names existing before 2005 that could be construed as health claims. These have a transition period until 19 January 2022 to comply with the regulation. As this is after the projected date for the UK to leave the EU, some form of resolution may be required.

Prior to the Nutrition and Health Claims Regulation5 being adopted, the UK had set up the Joint Health Claims Initiative (JHCI), a tripartite agreement between consumers, industry and enforcement, with the aim of offering pre-market advice. A code of practice was agreed to ensure that health claims were legally acceptable and scientifically truthful.

The code was applicable to any health claim made in advertising, marketing and product labelling, and worked on a voluntary basis alongside the food legislation current at that

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The UK has always been forward thinking on food labelling, adopting a number of proactive voluntary labelling schemes agreed between consumers, manufacturers, retailers and other stakeholders. time. The Expert Committee of independent scientific experts assessed the evidence submitted by companies and approved a number of health claims. JHCI also worked to develop well-established nutrient function statements at the request of the FSA.1 Some of the claims approved by JHCI were subsequently refused authorisation in the EU, e.g. for wholegrains and heart health and for soya protein and reduction of blood cholesterol.

In the case of wholegrains, this arose because, unlike EFSA, JHCI accepted claims based on evidence from observational studies, provided this was reflected in the claim wording, whereas EFSA’s approach requires evidence of a ‘cause and effect’ relationship reflecting a more ‘pharmaceutical’-type model.

This previous experience suggests scope for alternative approaches provided they remain rigorously scientific and acceptable to consumers, enforcement and industry,1 and this history can usefully inform any future divergence for health claim regulation in the UK. Regulation of food labelling The UK has always been forward thinking on food labelling, adopting a number of proactive voluntary labelling schemes agreed between consumers, manufacturers, retailers and other stakeholders. For example, guideline daily amounts (GDAs) were initially developed in the 1990s through such a process by the Institute of Grocery Distribution (IGD), and were the forerunner of Reference Intakes now enshrined in EU legislation.9 Other such initiatives included voluntary schemes to improve the labelling of allergens and

food safety advice. 10 A collaborative, voluntary approach ensures that industry adopts a consistent approach, is quick to respond to issues and can adapt quickly to further developments.

Continuing to encompass such an approach in the UK would be expected to benefit consumers.

During discussion of the Food Information to Consumers Regulation,9 the UK was instrumental in ensuring provision for ‘National Measures’ (Article 39) which allows for additional mandatory particulars for specific types or categories of foods, provided these can be justified by the protection of public health or protection of consumers, for example. This highlights that the UK has always desired the flexibility to ensure effective food labelling, and leaving the EU makes such flexibility more likely. This might encompass a mandatory requirement for front-of-pack labelling, for example, and the UK will require its own scheme for products with protected origin and geographical location.

CONCLUSION

A consequence of Brexit is that certain regulatory functions will need to be brought back within the UK, so that from the date we leave an effective and robust regulatory regime is maintained.

Brexit may provide a future opportunity for regulatory divergence in the area of food law, depending on the final relationship that is negotiated between the UK and the EU. In the longer term, changes could be made to health claims and food labelling regulations for example. A more flexible approach to health claims could enable more innovation and more understandable claims, provided consumer confidence is maintained.

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