Food Law and Brexit

The referendum result to leave the EU has raised many questions and uncertainties about the future of food regulation in the UK and what levels of compliance with EU rules will be necessary now and in the next few years. The answers to a lot of these questions will not be known until agreements are made during the exit negotiations. Currently for non EU members there are broadly two types of arrangement. The UK agreement could be one of these or a combination of both.

A European Economic Area (EEA) agreement guarantees equal rights, but also equal obligations within the internal market. This means that businesses in the EU and the three EEA countries have access to the internal market, and that their citizens can live, work, and study in all 30 EEA states. Usually EU legislation is incorporated into the EEA domestic legislation without any substantial adaptations.

The other arrangement would be a total exit from the EU whereby trade agreements would be negotiated as a third country. The UK could negotiate a bilateral trade agreement with the EU. This would mean having to implement EU standards on goods supplied to the EU, and not having tariff-free trade in goods with the EU but it would not be bound by the four freedoms of the Single Market or the EU internal market rules.

This document answers some of the immediate questions and will be updated during the process.

1. Following the leave vote do I still need to comply with EU regulations?

Yes, all current EU regulation will continue to apply while we are members of the EU and will be enforced by UK enforcement authorities.

2. When the Article 50 leave process is triggered will I still need to comply with EU regulations?

Yes, all current EU regulation will continue to apply during the exit negotiations. There might be an agreement whereby new requirements that will not apply post Brexit will have a transition period so compliance will not be necessary during the exit process unless it is placed on the (non UK) EU market.

3. Should I invest to comply with EU legislation which will not apply post Brexit?

This is difficult to answer, while there is still a requirement to comply fully with EU rules until we exit, there may be some relaxation of local enforcement. However, compliance will be needed for any products placed on the market in the rest of the EU pre and post Brexit.

4. What will happen to EU health marks? Will these be needed for trading in Europe?

Health marks and identification marks show the approval number of the approved establishment together with an abbreviation for the country of origin. This applies to seafood produced in the EU and to seafood imported into the EU.  When applied in an establishment within the EU, the mark must be oval and will also have the letters "EU" (or the equivalent abbreviation used by that member state). When the UK leaves the EU it can be expected that the identification mark will no longer have the "EU" abbreviation and the mark will no longer be oval.  

5. How much of our current regulation is EU regulation?

Food law is almost entirely EU in origin and a gradual move from directives to regulations to improve free trade and consumer protection has resulted in the current laws being mainly regulations. There are some slight differences between member states where derogations have been taken up or national guidance has been issued. 

6. Will we retain protected names status for products such as 'Grimsby smoked fish'?

Defra is aware of this concern and is talking to industry to ensure protection is maintained within the UK and EU.

7. What will replace EU legislation?

This is not yet known; feedback from industry suggests trade agreements are a greater priority than rewriting regulations. It will also depend on any trade agreements and conditions relating to EU regulatory compliance. Any exports will need to comply with the requirements of the importing country. 

8. Will the replacement regulation be a UK or devolved competence?

The enforcement measures of EU regulations are already a devolved competence so it is likely the post Brexit system will also be a devolved competence. 

9. Will the UK still be able to influence EU regulation until Brexit?

Yes, the UK will remain a full member of the EU until Brexit. The Competent Authorities have indicated they will be attending EU discussions where the issues will be of relevance post Brexit. This will depend on the trade agreements reached, and the level of post Brexit compliance.

10. What about CODEX? Could this replace EU rules?

CODEX is an international convention and not strictly a legal requirement, more a voluntary code for the member countries, although CODEX often becomes EU law at a later date. The UK is no longer an individual member of CODEX as it is represented by the EU membership.

11. What tariffs will apply once we leave  the EU?

All trade between the UK and other EU member states is largely exempt from tariffs. Whereas this situation will continue to apply while the UK is still in the EU, there is no guarantee that the free market will be retained after the UK leaves. Whether tariffs will apply and what they will consist of will depend on exit negotiations between the UK and the EU.

As a member of the EU the UK also benefits from various existing agreements between the EU and third countries. Once the UK leaves the EU, in principle these agreements will no longer apply. The UK Government is aware of this situation and is preparing to negotiate with trade partners to ensure a good deal for the UK. The Department for International Trade will be consulting with industry and conducting research over the next months to collect the information they need for the negotiations.

12. Will the need for an IUU catch certificate disappear?

Once outside the EU, the EU Regulation to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing should in principle cease to apply in the UK. However, the UK is committed to fight against IUU fishing and can be expected to have measures in place to ensure that imported seafood has been legally caught. The EU requires that fish entering its territory is accompanied by a catch certificate, and seafood caught by non-EU vessels needs to be accompanied by a catch certificate. Whether or not this will apply to seafood caught by UK-flagged vessels will be a matter to be resolved with the EU.

13. Will industry be consulted during the exit process?

Yes, government are already meeting industry representatives to hear their views on the current rules and movement of goods. Seafish will work with government and industry bodies to ensure the seafood industry is considered in the decision making process.

14. How can I stay informed of proposals and changes that affect my business?

Seafish produce a monthly newsletter with details of activities related to regulation. Relevant information from meetings attended by the team will be included. To subscribe to that newsletter please email Fiona.Wright@seafish.co.uk.  We also produce a weekly update of news from the EU and Brexit. To subscribe to this please email Cristina.fernandez@seafish.co.uk.