The end of an era
The end of the Brexit transition period is rapidly approaching. From 1 January 2021 the UK will enter a brave new world of independence from the European Union. Despite the continuing negotiations and uncertainty around trade deals, one thing is certain: Brexit brings upheaval for food and drink businesses.
The Northern Ireland Protocol
Under the Northern Ireland Protocol the UK Government agreed with the EU that it would maintain the position enshrined in the Good Friday Agreement that there would be no hard border between the Republic of Ireland and Northern Ireland (NI).
This has resulted in an arrangement whereby NI will remain in the EU single market for goods, and remain bound by EU regulations, while the rest of the UK is able to set its own regulations (at least within the border of Great Britain).
In practice this means that from 1 January 2021 there will effectively be a hard border across the Irish Sea, between NI and the rest of Great Britain (GB). Meanwhile, goods will be able to move freely throughout the Island of Ireland, regardless of how they got there.
For UK food and drink businesses trading in GB and NI this adds complexity, requiring the application of different labels and marks.
Food safety
At least in the short to medium term, there are no plans to change the existing food safety regime within the UK and so standards currently applied in relation to hygiene, traceability, testing, etc, will continue. Any existing rules which were incorporated into UK law via EU legislation have been transposed and enshrined in UK law.
So Brexit simply means that the UK has the freedom to change things in the future, should it wish to, at least insofar as goods remain within the GB market.
Food Business address
The EU requires pre-packaged food and drink sold in the EU to include on the label either an EU address for the Food Business Operator (FBO) responsible for the product, or the address of an EU based importer. From 1 January 2021 UK businesses sending goods to the EU must ensure that their labels include an EU address. An address within GB will no longer be acceptable.
Goods sold within GB must include a GB address on the label. The UK Government has recently extended the deadline for this change to be implemented and FBOs now have until 30 September 2022 to meet this requirement.
Goods which are sold in NI must have either an NI address or an EU address. So FBOs based in GB which also sell products in NI (regardless of whether or not they also export into the EU market) must have two different sets of labels: one label with a GB address for the GB market and one label for the NI market, which includes either an NI address or an EU address.
It seems likely that the requirement for an NI or EU address will require an FBO to have some form of formal, registered, presence in the relevant jurisdiction and that a PO Box address, or similar, will not be sufficient. The whole purpose of the inclusion of an address on a food label is to ensure that consumers and regulators have a means of knowing which FBO is responsible for ensuring the presence and accuracy of food information and to ensure that, where relevant, steps can be taken within that jurisdiction to enforce those labelling obligations against that FBO.
We understand that businesses are being told informally that it will be at least a year before requirements are policed. However, even if this is true insofar as it accords with the approach being adopted by the regulators in GB and/or NI, there is no guarantee that this approach will be adopted across the EU in relation to goods exported to the EU. The approach taken in individual EU member state cannot be guaranteed. In Germany, for example, consumer groups are very active in bringing what amount to the equivalent of private prosecutions and these will be very difficult to prevent. FBOs which export to NI and/or the EU should therefore not be complacent about delaying labelling changes.
Health and identity marks
These are the oval logo marks which must be applied to products of animal origin (POAO), including meat, egg products, cheese, milk and fish. They set out the place of origin and approval number of the registered FBO and show that the product is fit for human consumption and was produced in premises approved under health & hygiene regulations.
From 1 Jan 2021 new logos must be applied to food produced in the UK. The new logo to be applied differs depending on whether the FBO is based in GB or NI.
The UK Government has now stated that it is extending the date for implementation of this change to 30 September 2022 for goods in the GB market. As with FBO addresses, however, goods sold in NI and/or the EU will need to apply the new marks from 1 January 2021.
Country of origin labelling
It is compulsory to label certain products with their country of origin if they are being sold to the final consumer or mass caterers. Those products include meat, fish, seafood, eggs, honey and olive oil.
FBOs must also label products with their country of origin if failing to do so might mislead consumers. And they may also voluntarily declare the country of origin as a marketing tool (eg. ‘Made in Britain’). Legislation which came into force earlier in 2020, however, also requires FBOs to include the country of origin of the primary ingredient of the product if that differs from the declared or implied country of origin. So, a product which is declared to be made in Great Britain but one of the ingredients in it accounts for 50% of its content originates from outside GB (eg. the flour in the pastry of a meat pie), must also state where that primary ingredient came from.
From 1 January 2021 FBOs cannot label goods sold within the EU or NI as being from the EU if they originate from GB. Again, however, the UK Government has stated that it will allow the changes to be made more slowly for goods sold within the GB market and businesses have until 30 September 2022 to make the necessary labelling changes.
Geographical indicators
This regime covers those foods with protected names and designations, such as Cornish clotted cream or Stilton cheese. It is an EU wide scheme which provides legal protection against imitation for regional and traditional foods whose authenticity and origin can be guaranteed.
The EU currently runs a register of these protected food names but from January 2021 the UK will have its own register, run by Defra.
All existing registrations will be protected in both the EU and the UK but from January 2021, UK FBOs will have to seek protection for any additional products via the UK register and then, if protection is also sought within the EU market, a separate application to the EU.
For NI, those names listed in both the UK and EU register will have protection.
In the meantime, products on the GB market have until 1 January 2024 to change packaging and marketing materials for existing registrations to display UK logos.
Organic products
From 1 January 2021 GB FBOs should not use the EU organic label on their products unless a deal on equivalency of standards is reached before then.
The UK Government has said that it will recognise EU organic equivalency until 31 December 2021, meaning that food registered as organic in the EU will continue to be accepted as organic in the UK until that date.
Unless a deal is reached with the EU, however, UK organic products cannot be exported to the EU and labelled as organic, although products can still be exported provided they meet all the other standards and are not labelled as organic.
Summary
As we’ve seen, there are a number of Brexit-related labelling changes on the horizon, and a range of associated deadlines for those changes. And this is in addition to changes to allergen labelling which some FBOs will need to make next year if they prepare pre-packed food products on premises where they are to be sold directly on to the consumer.
The key takeaway from this is that FBOs which sell products in the NI or EU markets should not delay in making changes to their labels. For products sold in the GB market the key date for label changes is 30 September 2022, but remember that some of the dates vary from this deadline. In any event, FBOs should already be thinking about a comprehensive review of their labels.