Producing and labelling food in the event of a no-deal Brexit

HM Government has recently published a series of guidance notes; including one in relation to food production and labelling.

The guidance explores the effect that a no-deal Brexit would have on the labelling of food and compositional standards, which relate to particular foods such as jam and honey. The aim is to provide food manufacturers with guidance to enable them to consider the impact of a no-deal Brexit on their business.

Currently, labelling provisions in the UK are set out predominantly in EU Regulation 1169/2011 to ensure that the minimum quality standards are met – although there are numerous other Regulations detailing the compositional standards for certain foods.

Initial steps

The government has said that, in the event of a no-deal Brexit, any EU-based provisions would at first be rolled over and fixed by statutory instruments where required, to minimise the impact of the legislation ceasing to apply. The government has also confirmed that any UK compositional standards that are not EU-based, will remain unchanged, providing a small measure of certainty to some food producers.

Origins

Rather obviously, one change that will need to occur is that the use of 'EU' to describe the origin of a product from the UK will need to be amended on labels. There will also be further requirements where products are made up of both EU and non-EU products. The wording on labels will need to be amended to reflect that they are from more than one country, or include similar wording according to the relevant domestic legislation.

The government has also suggested that it may seek to legislate nationally to reflect the incoming EU requirements. These stipulate that the country of origin or place of provenance of the primary ingredient of a food must be included on the label from April 2020.

Responsible business addresses

In relation to pre-packed products, the requirements for the address of the responsible business on a product will also change. It will no longer be enough to have just the UK address of the responsible business on a product for sale in the EU market and similarly, just an EU address will not be sufficient on a product for sale in the UK. Therefore, to ensure that the label for the product can be used in both the UK and the EU, it will need to include a UK address and an EU address for the responsible business.

The government has provided guidance stating that if a food business in the UK wishes to sell to a country in the EU, they will have to provide an EU address for the responsible business or importer into the EU. EU countries wanting to sell their products in the UK will have to do the same, but provide a UK address on their label. This may lead to additional costs if, for example, the UK food business has to acquire a hub in the EU or engage an importer to ensure their produce labels comply with requirements.

For practical reasons, the guidance does state that food already labelled and in the UK market with an EU27 address will be allowed to be sold until stock runs out.

Natural Mineral Waters

Currently, in order to market natural mineral waters (NMWs) in the EU, a recognition process found in Directive 2009/54/EC must be followed. The government intends, post Brexit, to amend the UK's domestic regulations to ensure that recognitions granted by the nations of the UK retain their status within the UK. The aim here is to limit some of the impact on UK-based NMW producers.

However, this does not mean that UK NMWs will continue to be recognised in the EU. This reflects what was said in the European Commission's Notice to Stakeholders,  in the field of Directive 2009/54/EC (23 January 2018). UK producers will need to arrange for the inevitability of having to make 'third country applications' to EU member states for recognition of their water.

Future steps

The government has indicated that the issues discussed in the guidance note will be subject to full public consultation, although it remains to be seen when this will occur.

Potential changes also mean that food producers will have to consider an increase in costs as well as the likelihood of delays. These may be caused by having to alter the labels on their produce and potentially having to engage with importers in the EU/UK, amongst other requirements, in order to comply with the legislation and impacts of a no-deal Brexit.

If you would like more information on food labelling or related topics, please contact David Thompson, Partner and Head of Michelmores' Food & Drink sector.