Diluting food safety by stealth: what the draft replacement regulations may be telling us about UK food after Brexit

Diluting food safety by stealth: what the draft replacement regulations may be telling us about UK food after Brexit

Tony Lewis and Erik Millstone

7 March 2019

Throughout 2018, in a series of papers published by the Food Research Collaboration, we and colleagues expressed a number of concerns, not least of which was what might happen if the Government, in the event of a ‘no-deal’ Brexit, chose to water down food controls to ensure that Britain continued to be fed.  With the recent publication of the Government’s draft replacement food regulations, we are sorry to note that our concerns appear to have been well-founded.

Leaving aside the use by the Government of so-called ‘Henry VIII powers’ to enact these changes by Statutory Instruments (which reduce parliamentary scrutiny), at first look, the draft regulations seem straightforward and innocuous. For example, they delete references to both the European Food Safety Authority (EFSA) and to the EU’s Rapid Alert System for Food and Feed (RASFF). The UK will belong to neither after Brexit and will have to make alternative arrangements for the tasks these agencies currently perform. The draft Regulations do, at least, make it clear that the UK Government is continuing to negotiate for the UK’s ongoing involvement in the RASFF.

However, when the draft regulations are read in conjunction with both the original EU Food Law that is being replaced, and last September’s consultation on the proposed amendments, initiated by the Food Standards Agency (FSA), a more alarming story emerges.

The September 2018 FSA consultation stated that:

The Government recognises that under a ‘no deal’ scenario business and citizens would need time to adjust; therefore, to minimise disruption, our focus will be on maintaining continuity in the short-term. The objective will be to ensure that people are able to continue living their lives as normal.”

These are admirable sentiments and the first duty of any Government. However, the draft regulations also contain measures that:

  1. Give powers to the Secretary of State to relax the requirements on food traceability on a case-by-case or sector-by-sector basis, via the use of Regulations passed by Statutory Instrument;
  2. Completely remove the long-standing and important requirement that penalties imposed in respect of breaches of food law are ‘effective, proportionate and dissuasive’; and
  3. Remove the current requirement for EU Regulation 178/2002 to be enforced at all.

Why give the Secretary of State powers to relax the requirement on food traceability? Why do so on a case-by-case or sector-by-sector basis? Why remove the requirements that penalties for food law breaches are effective, proportionate and, most importantly, dissuasive? And why do so when such a measure was not contained in the 2018 consultation? What has changed since that time to warrant such action? Finally, why water-down the key requirements of EU Food Law and then remove the duty for it to be enforced?

When considered on their own, the measures contained in the draft regulations are worrying but don’t seem to make much sense. However, when read in the context of the explanation provided in the original FSA consultation, one cannot help drawing the conclusion that these measures are being put in place to enable Government to address an increasingly likely ‘no-deal’ Brexit and consequent food supply issues, by reducing existing standards and controls.

Thus, it could be concluded that via these draft Regulations, Government is giving itself the opportunity to be able to meet its objective of ‘minimising disruption’ and ‘maintaining continuity in the short term’. In the absence of any other cogent explanation, one might even conclude that feeding Britain in such a situation would trump food standards and controls, even to the extent of turning a legal blind eye as to the surety of the source of our food.

However, of much greater concern would be for these measures to be retained beyond the short-term and become the new long-term norm. Such a situation would be wholly unacceptable and would signal the advent of a very different type of food control regime.

That new regime is, to some extent, already heralded by another draft Statutory Instrument, on food additives and flavourings. This would take away from the public the right to know when an application is made to introduce a new food additive. The Government is also proposing to cease monitoring the rates at which flavouring additives are being consumed. These proposed changes would weaken food standards and make life easier for the food industry.

Once again and rather sadly, we are left wondering how, with around three weeks to go until we are scheduled to leave the EU and after over two years of negotiations, the UK finds itself in such a situation.  We have consistently called for Government to ‘think food’ in respect of Brexit. Government has consistently failed to do so!

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