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EU exit will be 'challenging' for food safety regulation

Leaving the EU will create food safety regulation "challenges" given the number of regulatory functions which may need to be transferred from the EU to the UK, according to a new briefing paper.02 May 2018

The paper, which has been produced for the benefit of members of the House of Lords, summarises the existing legal framework around food safety and the possible implications of the UK's departure from the EU on that framework. It also summarises some of the debate that has taken place around these issues to date, including statements issued by the UK's Food Standards Agency (FSA) and the outcome of a recent inquiry into the impact of Brexit on the UK's trade in food by a House of Commons select committee.

Food safety expert Sarah Taylor of Pinsent Masons, the law firm behind Out-Law.com, said that part of the problem is that the UK's food safety and hygiene regime is defined by EU law "to a great extent". In addition, the FSA's role and functions were created against a backdrop of most food safety risk management policy being set at the EU level, she said.

"The EU (Withdrawal) Bill, once on the statute book, will deliver some certainty for food businesses by providing that current rules will continue to apply the day after our leaving," she said.

"It remains to be seen whether the UK parliament will look to dilute the EU's approach in future, or prefer to maintain regulatory alignment. Last year's controversy over chlorinated chicken, for instance, showed how contentious divergence might be. And moves to lower standards for those operating in the UK market, as part perhaps of trade deals with other nations, are likely to have consequences for the UK's future access to the single market. UK businesses operating in the EU27 post-Brexit will of course need to continue to comply with the EU's rules in any event," she said.

"It is also as yet unclear whether the FSA will take on a wider role in due course, for example in managing the notifications about food risks to public health currently exercised by the EU's Rapid Alert System for Food and Feed. The so-called 'Henry VIII' clause in the EU (Withdrawal) Bill would allow for functions carried out by EU authorities to be transferred to UK public bodies," she said.

Food safety law in the UK includes both domestic legislation, particularly the 1990 Food Safety Act; and directly applicable EU legislation, primarily the General Food Law Regulation. Other relevant directly applicable EU regulations include those governing food labelling, ingredients and residue limits, food hygiene and organic status. Enforcement takes place at both EU and UK levels, but most food safety risk assessment is carried out at EU level by the European Food Safety Authority (EFSA).

Once the UK leaves the EU, it will cease to automatically be a part of ESFA and other EU food safety bodies. The UK government is currently considering "options for the future of risk assessment and scientific advice" after Brexit, although the final form of these options will depend on the nature of the UK's future relationship with EFSA. In its recent report, the House of Commons Business, Energy & Industrial Strategy (BEIS) Committee recommended that the UK should continue its membership of EFSA after Brexit, and keep regulation aligned with the EU.

The briefing paper summarises the main functions currently carried out at EU level which may need to be transferred to the UK as pre-market approvals; risk-based standards and controls; audits, fact-finding missions and other services to provide assurance to trading partners of the robustness of the UK's future food safety framework; information and intelligence sharing systems; and rapid response initiatives to step in and prevent potentially harmful food reaching UK consumers. It suggests that transferring these functions to the FSA will be challenging, particularly given the limited time available.

The paper also summarises the impact of possible new trade deals on future UK standards. It notes that concerns have already been raised about whether the UK could compromise its animal welfare standards in order to achieve free trade agreements, for example with the US; and cites evidence provided by witnesses to the BEIS committee inquiry to this effect.