As part of the European Union (EU), the United Kingdom (UK) currently benefits from world-leading standards for the safety and quality of its nutrition regulation. Following the UK’s exit from the EU, the Government will need to maintain these high standards throughout the UK. This is imperative to guarantee minimal disruption to the food manufacturing and nutrition industry, as well as to retain consumer confidence and safeguard public health.
If the UK leaves the EU without a deal, it will be necessary for the Government to bring about new legislation to amend retained EU law, and in some circumstances to generate new domestic legislation. The Government is currently developing “The Nutrition (Amendment etc) (EU Exit) Regulations 2019” in order to correct deficiencies in retained EU legislation, which will make sure that our current nutrition law will continue to function effectively. This has implications in safeguarding nutrition and health claims, the addition of vitamins, minerals and other substances to foods, and the composition and labelling of foods for specific groups and food supplements. The Government has stated that the deficiencies in retained EU law will be fixed on a UK-wide basis. Domestic legislations will be fixed in their respective domestic legislation ie, England, Scotland, Wales and Northern Ireland.
In December 2018, the UK Government’s Department of Health and Social Care (DHSC) launched a public consultation inviting comments from the food manufacturing and nutrition industry, representative groups, the public and other interested parties across the UK on the proposed approach to correcting deficiencies in legislation arising from exiting the EU. The consultation paper was made available on the GOV.UK website for anyone to respond to. Respondents included trade bodies, manufacturers, members of the public as well as one Local Authority. However, the consultation only received a total of 31 responses, so is unlikely to be voicing opinion from across the board of the food manufacturing and nutrition industry. This insight provides a summary of the responses received.
The consultation asked respondents to comment on the proposals for the Nutrition EU Exit Regulations, which details how retained EU legislation would be operable as domestic legislation, and would continue to work effectively. This includes:
• nutrition and health claims made on foods.
• the addition of vitamins, minerals and certain other substances added to foods.
• the composition and labelling of food supplements.
• the composition and labelling of food for specific groups which includes food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control.
Feedback was asked on the Government’s proposals to make technical amendments to retained EU nutrition legislation. The aim of the proposals was to continue the existing regulatory regime closely, ensuring minimal disruption to business and consumers, whilst also safeguarding the health of people living in the UK. The Government proposes retaining all relevant EU lists, registers and annexes, in order for the appropriate UK authority to be able to assess the scientific advice on an issue and if appropriate, specify modifications to any of these retained lists, registers or annexes.
The Government also detailed in the consultation that there would be one necessary change to current procedure, which is the establishment of the UK Nutrition and Health Claims Committee (UKNHCC). This will be an independent panel of scientists established as an expert committee of Public Health England. The UKNHCC’s role will replace that of the European Food Safety Authority (EFSA) Panel on Nutrition, Novel Foods and Food Allergens (NDA) to provide evidence-based scientific opinion to the four devolved UK administrations on any new nutrition and health claims made within the UK post-exit.
Nutrition and Health Claims:
• Respondents were strongly supportive of the proposed approach to adopt the current registers of EU-authorised and rejected claims. This includes support for retaining the current restrictions and conditions of use currently in place at EU-level.
• More detail was asked for on the risk assessment and management processes that would be in place to ensure the new UK Nutrition and Health Claims Committee would operate in the event of a no-deal scenario, including on appointing panel members, information on the timescales for the new scientific-opinion process and the process of submitting scientific dossiers.
• Businesses queried how companies could apply for new nutrition and health claims in both the UK and EU post-exit, and whether there would be mutual recognition of claims and information-sharing.
• Concern was raised on the future impact for business and trade if there was divergence in either the UK internal market or between the UK and EU. Several respondents commented that failure to remain aligned with the EU lists could have severe complications for product labelling, resulting in issues for integrated supply chains which could incur higher costs for businesses and consumers.
Vitamins, Minerals and Certain Other Substances:
• Overall, respondents expressed support for proposals to retain the Annexes that are currently contained in the EU legislation for vitamins, minerals and certain other substances.
• More information was requested on how the Annexes will operate, including how modifications would be made and whether this would be UK-wide.
• Respondents wanted to know more about the process for managing the approval process for amending the Annexes on the addition of vitamins, minerals and certain other substances to foods.
• Further clarification was asked for on the nature of the UK’s future relationship with the EU. Concern was raised over the possibility of future divergence from EU decisions, how this would be managed, and the burdens divergence could place on industry.
Compositional and Informational Requirements of Foods for Specific Groups:
• Support was given to the overall approach and for the intention for the UK to adopt the existing EU annexes.
• Concern was expressed about the absence of specific detail in the proposals and overall, respondents called for more information on the processes that would be in place post EU Exit.
• Respondents queried which committee would provide scientific opinion for foods for specific groups. They were interested to know how members would be appointed, how scientific assessments would be conducted, and how these changes would be communicated to stakeholders.
• Respondents also queried timescales for when any new processes would come into effect, including transition periods to comply with any changes.
• There was a strong call from respondents for the UK government to bring in to effect any future delegated legislation on food intended for infants and young children, food for special medical purposes and total diet replacement for weight control.
• Further clarification was sought on the nature of the future relationship with the EU and whether the UK Government will seek to harmonise with future EU decisions.
• Support was given for the proposal to adopt the existing lists of vitamins and minerals that may be added for nutritional purposes in food supplements and permitted sources (vitamin and mineral substances) from which those vitamins and minerals may be manufactured.
• Respondents wanted to know how the lists would be amended, and queried how changes to the process would be communicated to stakeholders, as well as the timescales for approval processes. They were concerned that we should ensure the robustness of the scientific advice provided to the four UK administrations.
• More detail was requested on the future relationship with the EU and how divergence would be managed.
• Clarification was sought on the Government’s approach to the legislation, and how amending regulations for food supplements would be addressed by the statutory instrument.
• There was strong concern raised on the potential for a greater negative impact on business should regulatory divergence exist between the UK and the EU in the future.
• Further clarification was requested on costs to industry.
• Concern was expressed by industry on the robustness of the future of the various scientific committees that will take on the EFSA functions, with some respondents suggesting that failure to implement the right level of scientific expertise, risk of divergence with the EU could increase.
• Some respondents raised concern that the consultation under-estimated the additional burden caused for submitting a new claim. For instance, respondents drew attention to the complexity of the process of submitting new scientific dossiers and how in practice, this can be both time consuming and costly. Further clarification was sought on this process.
• Some respondents argued that public health should be considered as an impact, as ultimately, regulations are in place to protect the population’s health.
• To ensure that guidance was fit for purpose, it was suggested that guidance be developed in conjunction with industry so avoidable impacts are mitigated and overall burdens to industry reduced.
• While overall, responses in this section focussed on the need for future harmonisation with the EU to avoid potential impacts that divergence could incur to business, consumers and public health, some trade bodies indicated a desire to utilise EU exit to strengthen both regulation and consumer protections.
• Respondents reiterated the need for clarification on timescales for guidance being published as well as the timeframe for industry to implement the new system post exit.
Based on the analysis of the responses to this consultation, the DHSC has stated that the proposed Nutrition EU Exit Regulations will ensure that the UK maintains its functioning body of nutritional law. They are now working towards the preparation of guidance, common framework and agreements so that the systems currently in place for nutrition regulation will continue to operate efficiently after exit from the EU. When this occurs, we will further report on the next steps taken by the Government to ensure that these standards for the safety and quality of its nutrition regulation are met.
The Nutrition (Amendment etc) (EU Exit) Regulations 2019: Published 30 January 2019
The Nutrition (Amendment etc) (EU Exit) Regulations 2019 Consultation Response: Published 25 February 2019