Earlier this month we wrote an insight entitled ‘Nutrition EU Exit Regulations: Response from the Food Manufacturing and Nutrition Industry’. Today, the 29th March 2019, the United Kingdom was due to leave the European Union, however this date has been delayed to either the 12th April 2019 when a no deal Brexit could take place, or the 22nd May 2019, if the House of Commons votes for Theresa May’s deal. Here, further to our earlier insight, we report on the steps the Government is taking to ensure that the UK maintains its current high standards for nutrition regulation, while minimising any disruption and burdens to business.
Steps Taken by the UK Government
The UK has a long tradition of close, scientific collaboration with European Food Safety Authority (EFSA), which is greatly valued. It remains the Governments preferred position to continue this relationship into the future, and officials are currently exploring ways in which this can be achieved. Ultimately, the exact nature of the future relationship is subject to negotiation with the EU. However, the proposals that were consulted on in this exercise ensure that nutrition regulation will continue to function effectively in the UK without this relationship with EFSA in place.
The Nutrition (Amendment etc) (EU Exit) Regulations 2019 has been documented to ensure that the UK has a fully functioning set of nutrition legislation from exit day. The Department of Health and Social Care carefully analysed the responses given by industry, trade bodies, and members of the public who all contributed to the consultation. Overall, respondents strongly supported the Government’s proposals to mirror existing EU systems, but requested more detail on how these would work in practice. As such, the Government set out the next steps that were taken to ensure that this feedback was fully considered to create an effective system for nutrition regulation in the UK.
The UK Government is content that The Nutrition (Amendment etc) (EU Exit) Regulations 2019 maintain regulatory standards in nutrition policy. To mitigate the impact on business, the policy will introduce domestic legislation that is in line with EU law under Regulation (EU) 609/2013, where businesses are already in a transitional period. There will be a continuing review of the situation to seek regulatory alignment with the EU, as deemed appropriate by the Government.
The Department of Health and Social Care (DHSC) acknowledged the request that any guidance should be developed in conjunction with industry. To ensure the guidance fully considered the concerns raised in this consultation, the Government engaged with industry, stakeholders and representative bodies through the Department of Business Energy and Industrial Strategy’s Business Expert Group. It is the Government’s hope that this further informal consultation alleviated concern and guaranteed minimal disruption to industry.
The DHSC also acknowledged the queries on how future changes will be communicated to interested parties and stated that future changes will be communicated via departmental update bulletins that will be placed on GOV.UK. This is similar to how the EU currently communicates updates and is a method which is recognised and accepted by industry.
The UK Nutrition and Health Claims Committee (UKNHCC)
If the UK is unable to access advice from EFSA after leaving the EU, an ‘expert committee’ has already been established to assume that role and thus ensure minimal disruption to industry.
The DHSC acknowledged the concern from respondents regarding the robustness of the future scientific committee which will assume responsibility for the provision of scientific opinion on new nutrition and health claim applications made within the UK. As such, for nutrition and health claims, the UK Government established the UK Nutrition and Health Claims Committee (UKNHCC), which is a committee of Public Health England (PHE).
The function of the UKNHCC is to provide opinion on the scientific evidence supporting applications for use of new nutrition and health claims in the UK. Decisions on whether to accept or reject nutrition and health claims will lie with the four UK administrations, taking into account the scientific opinion. It is envisaged that the UKNHCC would meet up to six times per year.
PHE have recruited the specialist members, including a Chair, required for the committee. The panel is of the highest standard, and all were required to have a strong understanding of the public health aspects of their area of expertise as well as a track record of significant achievement and personal effectiveness in one or more of the specialist areas.
It is anticipated that the procedure for submitting applications for new claims for assessment by the UKNHCC will be substantially similar to the procedures for submitting claims to EFSA.
Lists and Annexes
Respondents to the consultation asked for more clarification of EU Lists, Registers and Annexes, and where they would be made available and whether they would be modified on a UK-wide basis. The DHSC has stated that the necessary registers will be made available on GOV.UK. All four UK administrations have worked toward an agreed common framework and Concordat which intends to ensure future co-operation and significantly reduce the risk of internal divergence. It is the full intention that lists and annexes will be modified consistently across the UK as far as possible, and the governance systems in place through the Concordat will address disagreements between countries, if they arise.
The statutory instrument is largely technical in nature, amending existing domestic, and retained EU legislation as well as revoking some pieces of related EU tertiary legislation which will no longer apply to the UK after withdrawal. The DHSC has inserted the Food Supplements, Vitamins, Minerals and Other Substances (Scotland) Regulations (Annexes of Directive 2002/46) as schedules in the Nutrition (Amendment) (EU Exit) Regulations 2019, and not into the existing domestic legislation on food supplements, to ensure that a UK wide list is apparent from the start, rather than separate lists for each part of the UK, which would create unnecessary complexity for industry.
New delegated EU legislation under Regulation (EU) 609/2013, which is food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control, will not apply in the EU on Exit day, and so will not become retained EU law. The first part of Delegated Regulation 2016/128, which is the specific compositional and information requirements for food for special medical purposes, has become retained EU law, except that developed to satisfy the nutritional needs of infants. The DHSC’s policy intention, prior to the UK leaving EU, was to make domestic legislation that is consistent with the other delegated legislation that has been made. This includes requirements for foods for special medical purposes developed to satisfy the nutritional needs of infants, and for infant and follow on formulae.
The DHSC is content that the UK will retain a functioning body of nutrition law. Officials in the DHSC and across the four Devolved Administrations are continuing to work together closely in the production of the necessary guidance, common framework and underpinning concordat agreements to ensure the systems currently in place for nutrition regulation will continue to operate smoothly. Additional information on how this will operate in practice will be made available through detailed guidance bulletins via GOV.UK.
Nutrition EU Exit Regulations: Response from the Food Manufacturing and Nutrition Industry
The Nutrition (Amendment etc) (EU Exit) Regulations 2019 Consultation Response: Published 25 February 2019
The Nutrition (Amendment etc) (EU Exit) Regulations 2019: Published 30 January 2019