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Focus on Regulation

UK Government publishes first no-deal Brexit notices for food

The Government has released its first batch of technical notices which aim to prepare UK citizens and businesses for an exit from the EU without a Withdrawal Agreement on 29 March 2019. Of most relevance to food businesses are the notices on developing genetically modified organisms (“GMOs“) and producing and processing organic foods.

Under the European Union (Withdrawal) Act 2018, existing UK laws implementing European Regulations and Directives will continue to apply after the UK leaves the EU. Existing legislation will be amended so it functions effectively in the new UK-only context, for example, by replacing references to the UK as a Member State.

With regard to GMOs, this means there will be few significant implications in the event of a “no-deal” scenario. The release of GMOs will continue to require prior authorisation, which will only be granted if there are no safety concerns, as is currently the case under EU Directive 2001/18. These decisions will continue to be taken in the UK, as will regulatory decisions on marketing GMOs which have previously been made at EU level. Any EU decisions authorising the marketing of GMOs which are in force the day the UK leaves the EU will continue to apply until the expiry of the current EU consent period.

The main difference to the current regime is that the UK will be treated as a third country by the EU for trade purposes. Therefore, UK businesses will only be able to export GMO products to the EU if the GMO in question has EU marketing approval. Similarly, EU GMO exports to the UK will be dependent on the products having marketing approval in the UK. Over time, this may result in increased barriers to trade between the UK and the EU. However, overall, the impact on food businesses in the UK is likely to be low given that the only GM crop seed currently approved for commercial cultivation in the EU (MON 810 Maize) is not currently marketed or grown in the UK.

The Government anticipates more upheaval in the organic food sector. It confirms that the UK will continue to maintain high standards in food production and labelling and that UK organic control bodies will still be responsible for certifying UK organic operators. It also plans to continue accepting imports of EU organic products as well as those from countries with equivalent standards such as the USA, Canada, Japan and South Korea (although, this remains at the UK’s discretion). Nonetheless, there will be a number of substantial changes in the event of a no-deal Brexit because the UK will be treated as a third country. Notably:

  • Food labelling will need to change as UK organic operators will no longer be able to use the EU organic logo. There will be a grace period to during which existing stock can be sold through, but the UK will need to develop its own logo for use on organic products.
  • A new traceability system will replace the current EU TRACES NT system to ensure the traceability of organic food and feed imported into the UK. More information on the replacement system is expected in the coming weeks.
  • Export restrictions will be placed on UK businesses, which will only be able to export to the EU if they are certified by an organic control body recognised and approved by the EU. Problematically, UK control bodies cannot apply to the EU for recognition until the UK becomes a third country and approval can take up to nine months. The Government intends to negotiate an equivalency arrangement with the EU which will allow the free movement of organic goods between the EU and the UK in the meantime. However, if it fails to do so, this may leave the UK unable to export organic products to the EU for nearly one year post-Brexit.

Overall, the notices stress the Government’s confidence in its ability to negotiate a successful deal with the EU and maintain that these are merely contingency plans to enable UK businesses to prepare for the worst-case scenario. However, whilst providing some initial guidance, the notices suggest that there continues to be a significant degree of uncertainty regarding the UK’s position in the event of a no-deal Brexit. In particular, there does not yet seem to be a viable plan to ensure continuing trade of organic products between the UK and the EU27 on Day 1.

A further 50 or so notices are expected to be published before the end of September. As 29 March 2019 looms closer, businesses should continue to monitor these carefully and consider how they will respond to a “no-deal” outcome to ensure continuity in their operations.