On 1 February 2018, the European commission posted a “Notice to Stakeholders – Withdrawal of the United Kingdom and EU Food Law”. As in the case of the 25 January Notice to stakeholders – withdrawal of the United Kingdom and EU rules in the field of import/export licences for certain goods, the notice points out that unless a ratified withdrawal agreement establishes another date, all Union primary and secondary law will cease to apply to the United Kingdom from 30 March 2019, 00:00h (CET) (‘the withdrawal date’). The United Kingdom will then become a ‘third country’. The notice states:
Subject to any transitional arrangement that may be contained in a possible withdrawal agreement, as of the withdrawal date, EU food law no longer applies to the United Kingdom. The legal consequences presented below stem from EU food law with regard to food placed on the EU-27 market as from the withdrawal date and coming from a third country (i.e. imported).
This notice is also relevant for food coming from the Channel Islands and Isle of Man.
1. Food labelling and food information, health and identification marks
EU food law harmonises the labelling of food placed on the EU market. The applicable rules are in particular contained in the following pieces of EU legislation [please see original notice for omitted citations shown as ‘… ‘ and footnotes]:
- … the provision of food information to consumers;
- … nutrition and health claims made on foods;
- … food intended for infants and young children, food for special medical purposes, and total diet replacement for weight control;
- … genetically modified food and feed, as well as … concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms …;
- … establishing a common organisation of the markets in agricultural products;
- EU legislation on the definition, description, presentation and labelling of spirit drinks, and on honey;
- … organic production and labelling of organic products.
The EU food labelling rules apply to all food placed on the EU market, independently of the place of production of the food.
In some instances, EU food law may require some changes of the labelling of food placed on the EU market due to the fact that the United Kingdom will be a third country as of the withdrawal date. Examples include the following:
- Mandatory presentation of the origin of a food product, where the presentation refers to EU or non-EU;
- Mandatory labelling of the name or business name and address of the EU-27 importer of food from the United Kingdom;
- Mandatory health or identification marks according to Article 5 of Regulation (EC) No 853/2004. As of the withdrawal date the health mark or the identification mark shall no longer include the “EC” abbreviation, which is reserved for establishments located in the EU, but shall only include the name of the country (in full or with the ISO two-letter code) where the establishment is located.
Food business operators are advised to assess the need for possible changes to the labelling of food placed on the EU-27 market as of the withdrawal date.
2. Food ingredients, food composition, contaminants and residue limits; food contact material
According to substantive EU food law, certain food must not be placed on the market unless it has been approved by the Commission (for example for food additives, food flavourings, smoke flavourings, vitamins and minerals used in food, including in food supplements and any novel food) or an individual applicant has obtained an authorisation by the Commission (for example for genetically modified food).
Certain food is subject to specific composition requirements and EU food law sets limits for contaminants, and maximum residue levels of active substances.
Food contact materials placed on the EU market are subject to EU rules, and certain food contact materials are subject to additional specific measures.
EU law on food ingredients and food composition, as well as EU law setting limits for contaminants and residues in food, applies to all food placed on the EU market, independently of the place of production of the food. The same applies for food contact material.
3. Requirements for food business operators and authorisation holders, or their representatives, to be established in the EU; Submission of EU authorisation requests through an EU Member State
According to EU food law, in some instances the food business operators, authorisation holders, or their representatives have to be established in the EU. For example, According to Article 4(6) of Regulation (EC) No 1829/2003 on genetically modified food and feed, the applicant for an EU authorisation or his representative shall be established in the EU. As of the withdrawal date, establishment in the United Kingdom no longer complies with this requirement.
According to EU food law, in some instances EU authorisations require the submission of an authorisation dossier through the competent authority of an EU Member State. Examples include the following:
- … on food contact materials requires applications for authorisations of substances to be made via a competent authority of a EU Member State.
- … on genetically modified food and feed requires applications for authorisation to be sent to the European Food Safety Authority (EFSA) through the competent authority of a Member State.
As of the withdrawal date, applications through the competent authority of the United Kingdom are no longer possible.
4. Food production rules/food hygiene rules, food irradiation, organic production
EU food law sets rules for the production of food in the EU and in third countries, if this food is placed on the EU market. EU food law also provides for specific controls upon entry of food into the EU.
4.1. Food of animal origin
As of the withdrawal date, the importation of food of animal origin from the United Kingdom into the EU-27 is prohibited, unless certain requirements are met, including:
- The United Kingdom is “listed” by the Commission for public and animal health purposes. For the “listing” of a third country, … apply.
- The establishment in the United Kingdom from which the food is dispatched, and obtained or prepared in, is “listed” by the Commission for public health purposes. For the “listing” of establishments, … apply.
- The United Kingdom is “listed” by the Commission as having a residue control plan approved in accordance with Directive 96/23/EC for the animals and animal products specified therein. For the “listing” of a third country, … applies.
- The imported food satisfies all food hygiene requirements set out in …. The possibility for national measures to achieve EU food hygiene standards (“flexibility provisions”) … no longer applies to the United Kingdom.
Food business operators importing products of animal origin shall ensure that import takes place only if the above mentioned conditions are respected.
As of the withdrawal date, these substantial requirements are controlled upon entry into the EU-27 by applying mandatory border checks at the first point of entry into the Union territory:
- This food can only enter the EU-27 through approved “border inspection posts”;
- Each consignment undergoes documentary and identity checks, as well as at an appropriate frequency physical checks;
- Each consignment has to be accompanied by a certificate in compliance with EU food legislation.
4.2. Food of non-animal origin
Unlike for food of animal origin, the importation of food of non-animal origin is not subject to listing requirements of third countries and establishments.
The EU Member States shall carry out regular official controls on imported food of non-animal origin. Those controls are organised on the basis of the multi-annual national control plan and in the light of potential risks. The controls shall cover all aspects of the food legislation. In cases of known or emerging risk, EU rules providing an increased level of official controls at designated points of entry into the Union may apply.
In addition, in order to ensure phytosanitary protection of the EU-27 Member States, the following phytosanitary EU rules apply:
- The import of tubers of species of Solanum L. (ware potatoes), and their hybrids is prohibited. For exceptions, Point 12 of Part A of Annex III to Council Directive 2000/29/EC applies.
- The import of certain fruits and vegetables is subject to specific requirements;
- The import of food listed in Annex V to Directive 2000/29/EC (some of them subject to the import requirements mentioned in the previous point) requires a phytosanitary certificate. These foods are subject to 100% documentary controls at the point of entry. They are also subject to identity and physical controls, though at specified minimum frequencies depending on the risk that they present.
4.3. Irradiated food
Food treated with ionising radiation is regulated by EU law. As of the withdrawal date, the import of irradiated food from the United Kingdom into the EU-27 is prohibited, unless the irradiation facilities in the United Kingdom are “listed” by the Commission. For the “listing” of a third country, Article 9(2) of Directive 1999/2/EC applies.
4.4. Recycled plastic materials and articles intended to come into contact with food
According to EU law, authorisation holders shall notify to the Commission manufacturing or recycling sites in third countries in which the authorised recycling process of plastic materials and articles takes place.
5. Certificates for organic production
According to Regulation (EC) No 834/200754, only products satisfying the requirements of that Regulation can bear terms referring to the organic production method (e.g. organic, bio, eco, etc.) or the EU organic logo. According to …, the control authorities and bodies of the EU Member States are responsible for issuing documentary evidence (certificates) to the operators necessary for placing such products on the EU market.
For products placed on the EU-27 market as of the withdrawal date, the certificates issued by control authorities and bodies in the United Kingdom are no longer valid.
The import of organic products from the United Kingdom will be subject to the rules laid down in Title VI of Regulation (EC) No 834/2007. This requires, in particular, that the United Kingdom is “listed” in accordance with …, or that a certificate has been issued by a body referred to in Article 33(3) of Regulation (EC) No 834/2007.
The websites of the Commission on food imports and organic farming provide for general information concerning EU food legislation for imported food and organic farming. The notice says those pages will be updated with further information, where necessary.