FDF Brexit Labelling Webinar Nicola Smith Thursday 17 October 2019 - - PowerPoint PPT Presentation

Nicola Smith Thursday 17 October 2019

FDF Brexit Labelling Webinar

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Introductions

Nicola Smith Director, Environment Safety and Health

nicola.smith@squirepb.com T: +44 121 222 3230

▪ One of the world’s strongest integrated law firms. ▪ Over 1,500 lawyers in 46 offices across 20 jurisdictions ▪ Ranked as one of the top 10 most global law firms in the Global 100 survey ▪ Leading mid-market firm – ranked Tier 1 for mid-market M&A by Legal 500 ▪ Cost-effective, pragmatic, commercial approach to deal-making

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About this Presentation ▪ EU Law and Institutions ▪ Current Labelling Laws ▪ Application of EU Food Law after Brexit:

▪ Food Business Operator ▪ Country of origin labelling ▪ EU organic logo ▪ EU Emblem ▪ Protected Geographical Indications ▪ Health and Identification Marks for Products of Animal Origin

▪ What Food and Drink Businesses Should Be Aware of and How They Can Prepare

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Current System and Labelling Laws

A Brief Reminder

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Food and Drink Laws– EU Law

COMMUNITY LAW Directives Regulations Decisions Recommendations / Opinions / ECJ rulings EUROPEAN FOOD SAFETY AUTHORITY (EFSA) Risk assessment and communication Scientific opinions Working with national bodies

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Reminder - EU Regulatory Framework – Food Information

• Food Information for Consumers Regulation (EU FIC) - Adopted 25 October

2011 – Regulation (EU) No 1169/2011

• Applied directly in Member States since 13 December 2014 (except

mandatory nutrition declaration which was13 December 2016)

• Applies to FBOs at all stages of the food chain, with ‘food business’ meaning

any undertaking, whether for profit or not, carrying out any of the activities related to any stage of production, processing and distribution of food.

• Even FBOs not supplying directly to the consumer or to mass caterers need

to ensure that their customers (i.e. business to business) have sufficient information to allow them to comply with the EU FIC.

• UK Regulations – enabling legislation creates offences, delegates

competent authorities; deals with matters where Member State discretion e.g. means of making information available.

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Responsibilities under EU FIC

▪ Responsibility for information rests with operator under whose name food is marketed or importer into the EU ▪ Operators who do not affect the information must, nevertheless, not supply food which they know or presume has non-compliant labelling ▪ Operators responsible for any changes they make and these must not mislead or reduce safety ▪ All operators must ensure compliance with the requirements within their business

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EU FIC – Prepacked Food Requirements

▪ Required information must be given directly on package or label attached to it. ▪ Mandatory particulars must be in minimum font size (x height 1.2mm/ 8 point print). Mandatory particulars will include:

➢ Legal name, customary name or descriptive name ➢ Ingredient listing ➢ Net quantity declaration ➢ Durability indication ➢ Name or business name and address of food business operator under whose name the

food is marketed, or the importer into the EU

➢ Allergen information in ingredient list in specified format - different typeset, derivative then

allergen e.g. cheese (milk), prawns (crustacean), skimmed milk

➢ Nutrition information (mandatory from 13 December 2016) ➢ Origin labelling for certain products - including for primary ingredients in all foods for which

whole product origin is volunteered

➢ QUID – Quantify ingredients that appear in name of food or are usually associated with the food,

• r pictures emphasising ingredients. Various exemptions where largest surface area is less than

80cm2, 25cm2 and 10cm2 respectively ▪ Nutrition Declaration mandatory since 13 December 2016 for most products.

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EU FIC – Article 8 – Business to Business (1)

▪ ‘Article 8 (7): In the following cases, food business operators, within the businesses under their control, shall ensure that the mandatory particulars shall appear on the pre-packaging or on a label attached thereto, or on the commercial documents referring to the foods where it can be guaranteed that such documents either accompany the food to which they refer or were sent before or at the same time as delivery:

➢ (a) where prepacked food is intended for the final consumer but marketed at a stage

prior to sale to the final consumer and where sale to a mass caterer is not involved at that stage;

➢ (b) where prepacked food is intended for supply to mass caterers for preparation,

processing, splitting or cutting up.

▪ Notwithstanding the first subparagraph, food business operators shall ensure that the particulars referred to in points (a), (f), (g) and (h) of Article 9(1) also appear on the external packaging in which the prepacked foods are presented for marketing.

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EU FIC – Business to Business (2)

▪ Where FBO supplies to its customers falls within Article 8, the required details to be on the ‘external packaging in which the prepacked foods are presented for marketing’ are:

➢ the name of the foods; ➢ the date of minimum durability; ➢ special storage conditions or conditions of use; and ➢ the name of the business and its address for the food business operator

under whose name or business name the food is marketed (or, if that operator is not established in the Union, the importer into the Union market).

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Country of Origin Labelling

▪ Origin labelling mandatory where consumer could otherwise be misled (e.g. if image of flag) and for certain products e.g fresh or frozen beef, veal, pigs, sheep, goats and poultry; honey; fruit and veg; fish; and organic products. ▪ Commission has produced implementing rules which will require information both on the place of rearing and place of slaughter for these meats. ▪ May be extended to additional products in future. ▪ In any event, for all foods where whole product origin is volunteered IF that origin is different from origin of primary ingredient, origin labelling for primary ingredients is MANDATORY. ▪ Otherwise, COOL is voluntary.

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Miscellaneous Food and Drink Laws (Importation

• f Food, GMOs, PGIs)
• Importation of Food:
• Regulation (EC) No: 178/2002 – General Food Safety Requirements (definition of unsafe

food includes consideration of information provided)

• Specific Regulation – Foods of Animal Origin vs No Animal Content:
• Council Directive 97/78/EC - products of animal origin – health and hygiene standards
• Council Directive 90/425/EEC and Council Directive 91/496/EEC – animals and animal

products – animal and public health requirements

• Regulation (EC) No 510/ 2006 - protection of geographical indications (PGIs) and

Designations of Origin (PDOs)

• Regulation (EC) No. 1829/2003 – Traceability and Labelling of genetically modified

food (GMOs) and food and feed products produced from GMOs:

• Labelling – “This product contains genetically modified organisms”.
• Regulation (EC) No. 1924/2006 - Nutrition and Health Claims
• Regulation (EC) No. 1935/2004 – Food Contact Materials
• Product specific labelling obligations, including in relation to spirit drinks, honey, coffee

extracts and chicory extracts, cocoa and chocolate products, certain sugars, fruit and vegetables, fruit juices, fruit jams, jellies and marmalades and certain milk products.

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Impact of Brexit

Labelling Laws Likely to be Affected

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Application of EU Food Law after Brexit

▪ European Commission Notice to Stakeholders 1 February 2018 – Withdrawal of the UK and EU Food Law:

▪

Food Labelling and Food Information, Health and Identification Marks:

• Origin labelling: EU or non-EU e.g. blend of honeys
• Name or business name and address of EU importer of food from UK
• Mandatory health or identification marks under Regulation (EC) 853/2004 (specific hygiene rules for foods of animal
• rigin)

▪

Food Ingredients, Food Composition, Contaminants and Residue Limits

• Approval by Commission (for food additives, food flavourings, smoke flavourings, vitamins and minerals and novel

foods)

• Authorisation by Commission (e.g. GMOs)
• Composition requirements (e.g. food for infants/ young children, special medical purposes, diet replacement)
• Food contact material requirements

▪

Requirements for FBOs and Authorisation Holders (or representatives) to be established in EU e.g. GMOs; Submission of EU Authorisation requests through EU Member State (e.g. FCMs, GMOs)

▪

Food Production Rules / Food Hygiene Rules, Food Irradiation and Organic Production

• Food of Animal Origin – UK/ establishments need to be listed for public/ animal health/ residue control; food to meet

hygiene requirements; border inspection posts/ consignment checks.

• Food of Non-Animal Origin – listing requirements N/A, but official controls at Member State level.
• Irradiated Food – UK irradiation facility must be ‘listed’ by Commission.
• Recycled Plastic FCMs – third country manufacturing or recycling sites must be notified.
• Certificates for Organic Production – UK-issued certificates will no longer be valid; UK must be ‘listed’ by

Commission

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Immediate Changes

If we exit the EU without a deal, some changes will be required for all types of prepacked food and drink labels immediately:

▪ Name and Address of Food Business Operator ▪ Country of origin labelling ▪ The EU organic logo ▪ The EU emblem

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The Food Business Operator

Sales of Food and Drink Products in EU-27

• EU FIC: The FBO means, for these purposes, the operator under whose name or business name

the food is marketed or, if that operator is not established in the Union, the importer into the Union market. Sales of Food and Drink Products in UK

• You must include a UK address on pre-packed food. If the FBO is not in the UK, the address of the

importer must be included.

• Existing stocks – placing on the market:

placing on the market” means the holding of food or feed for the purposes of sale, including

• ffering for sale or any form of transfer, whether free of charge or not, and the sale,

distribution, and other forms of transfer themselves.“

• Making arrangements with distributors
• Assessment of likely enforcement approach to prioritise
• Interim arrangements for traceability / customer contact
• Alternative manufacturer address in the EU?
• Importer Obligations – Economic Operator Status

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Country of Origin

▪ Specific country labelling may continue ▪ Mixed foods ▪ Eggs ▪ Organic foods ▪ Minced meat ▪ Fruit and vegetables ▪ Blended honeys and olive oil ▪ Beef and veal

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DEFRA Country of Origin Flowchart

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Protected Geographical Indications/ Designations

• f Origin

▪ Protection of UK GIs in the EU. ▪ UK will set up its own geographical indication schemes. ▪ All existing products registered under EU GI schemes will receive UK GI status and remain protected in the UK. ▪ Those who wish to protect a new product can apply to the relevant UK scheme. ▪ Three years to comply.

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Protected Geographical Indications (Continued)

▪ Other EU protections ▪ Protection of cross border Irish products ▪ International protection of UK GIs ▪ Existing EU products

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Products of Animal Origin - Changes to Health and Identification Marks

▪ Health and ID marks before the UK leaves the EU ▪ If the UK and EU agree a deal? ▪ If the UK leaves the EU without a deal? ▪ Default health and identification marks to be applied if the UK leaves the EU without at deal

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Changes to Health and Identification Marks (Cont.)

▪ Alternative health and identification marks ▪ Existing stocks of “EC” identification marks ▪ Size and dimension of health and identification marks

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Other Considerations

▪ Economic Operator ▪ When was the product ‘placed on the market’ (or when will it be) ▪ Nutrition and Health Claims/ Vitamins and Minerals/ Food Supplements ▪ Importing and Exporting Plant Products/ Phytosanitary Certificates ▪ Other labels – recycling/ sustainability etc. ▪ Supply chain disruptions – due to all of the above!

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Enforcement Approach

UK and EU

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Enforcement

▪ UK: 21 month transition period

▪ Mostly established in legislation ▪ The Association of Chief Trading Standards Officers - a pragmatic approach to

enforcement is encouraged

▪ Scotland also intend to apply a 21 month transition period, subject to Ministerial

agreement

▪ EU laws enforced through local laws ▪ Deal: Transition period ▪ No Deal: Possible immediate enforcement ▪ Enforcement authorities and penalties will vary

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Preparations for Exit

Summary of Key Considerations

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Preparation for No Deal

▪ Review Product Portfolio:

▪

Identify which products are sold in UK and/or EU (also keep Ireland proposal under review)

▪

Identify products where name and address of FBO will need to be changed to EU or UK entity (depending on retail market)

▪

Identify products where country of origin is mandatory and where UK-origin is currently referred to as EU

▪

Identify marks / logos used and particularly any use of EU emblem or EU organic logo

▪

Identify Health / Identification marks for POAO and prepare for use of replacement mark (discuss with FSA/ DAERA if UK).

▪ Products to be sold in UK - Identify timeline to make relevant changes (21 month period):

▪

Consider existing stocks

▪

Required period for re-design and production of new labels

▪

Monitor UK health and nutrition claims register

▪

Where you will become an ‘importer’ consider documents/ information needed from suppliers to demonstrate compliance with UK laws

▪

Review logos used and assess if any licence is for EU use/ will cover UK

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Preparation for No Deal – Continued

▪ Products to be sold in the EU:

▪

Identify key markets

▪

Monitor intended approach to enforcement

▪

Consider existing stocks

• Agree with customers relabelling requirements and process (where distributors label for

local requirements e.g. language, consider dealing with Brexit labelling changes at same point in chain)

• Assess timelines required for relabelling – deal/ no deal

▪

Assess whether importer into EU likely to require further documentation/ information to confirm compliance with EU food laws (safety, composition, information).

▪

Monitor protection of UK GIs and PDOs and consider alternative protections

▪

Monitor procedures to apply for equivalence of EU Organic Logo ▪ Ensure retention of documents to evidence placing on the market prior to withdrawal. ▪ Assess arrangements for passing back feedback from consumers to named FBO, where required. ▪ Review agreements (with suppliers and customers) to assess potential impact of supply chain delays due to labelling (or other issues) and consider warehousing and logistics arrangements

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Further Guidance and Information

▪ No Deal Readiness Report – UK Government – October 2019 ▪ Food and Drink Labelling Changes if There’s a No Deal Brexit – UK Government – Feb 2019, updated 23 August 2019 ▪ FDF Brexit Roadmap (continually updated) ▪ BrexitFoodHub.co.uk (developed by 27 partner organisations, including FDF) ▪ Guidance on GIs – UK Government – February 2019 ▪ Guidance on Changes to Health and Identification Marks for POAO – UK Government September 2019 ▪ Exporting animals and animal products in a no-deal Brexit – UK Government – Updated 14 October 2019 ▪ Importing animals, animal products and high-risk food and feed not of animal origin if there’s a no- deal Brexit – UK Government – Updated 30 September 2019 ▪ Brexit: Listing of establishments to export products of animal origin to the EU – FSA – Updated 18 September 2019 ▪ Brexit: Changes to health and identification marks – FSA – Updated: 13 September 2019 ▪ Export Fish after a No Deal Brexit – UK Government – Updated 9 October 2019 ▪ Importing and exporting plants and plant products if there’s a no-deal Brexit – UK Government – Updated 8 October 2019 ▪ EU Notice to Stakeholders: Withdrawal of the UK and EU Food Law and EU Rules on Quality Schemes – Europa – 20 March 2019 (replaced Notice Feb 2018)

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Thank you

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Contact Info Slide

Nicola Smith Director Squire Patton Boggs 0121 222 3230 Nicola.smith@squirepb.com

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