Brexit: the implications for food law

During the referendum campaign, supporters of Leave broadly suggested five different options for the UK’s relationship with the EU after Brexit: to trade with the EU under WTO rules, to enter into a customs union with the EU, to have the sort of ad hoc arrangement that Switzerland has with the EU, to enter into a comprehensive free trade agreement with the EU or to trade as a member of the European Economic Area (EEA).

The EEA is currently underpinned by the EEA Agreement, to which the signatories are the 28 members of the EU and three of the four members of the European Free Trade Association (Norway, Iceland and Liechtenstein). Being a signatory to the EEA Agreement entitles an EEA member state to unrestricted, tariff free access to the EU’s Internal Market (the correct name for what press and politicians call the Single Market) for all products except fisheries and agriculture.

The EU has two types of legislation; one that applies only to EU member states and, on another, that which has “EEA relevance” and consequently applies (in theory) to all 31 member states of the EEA. There is a complex procedure for making a law which has been declared to have EEA relevance actually applicable under the EEA Agreement to the non-EU, but once it has passed through the appropriate procedure, it is added to the relevant Annex of the EEA Agreement and non-EU member states are then obliged to give equivalence to it in their domestic legislation.

Virtually all UK food law comes from the EU, either because the EU has made a Regulation which is directly applicable in the UK or because the UK has made a regulation as a result of a Directive from the EU instructing it and all other members states to do so.

Virtually all EU food law has EEA relevance, which means that it has to be given effect by non-EU member states of the EEA.

If therefore, the UK were to leave the EU but to join the EEA, most EU food law would continue to apply in the UK.

If however, the UK’s relationship with the EU were to be governed by one of the other arrangements set out above, the legal consequence would be that the UK would not be required to apply EU food law in the UK (unless the arrangement provided otherwise). Nevertheless, the moment of Brexit would not necessarily mean the end of EU food law in the UK, for a variety of legal, political, practical and economic reasons.

Firstly, from a strictly legal perspective, any UK regulations enacted as a result of an EU Directive are part of UK law and remain so until repealed or amended by the UK government.

Secondly, as directly applicable EU Regulations would cease to be applicable in UK courts at the moment of Brexit, the UK government would need to re-enact them in one form or another. Neither EU Directives nor EU Regulations are some sort of additional red tape strangling the food industry that the UK could just throw off, since they regulate things that any modern state would wish to regulate; including safety, additives, labelling, health claims, supplements etc. From a political perspective something would have to replace much of EU food law, since the wholesale abolition of food law would provoke a public outcry.

Thirdly, from a purely practical point of view, although theoretically EU Regulations could be reconsidered during the process of re-enactment and perhaps adapted to suit a UK perspective, there simply would not be enough civil service resource or parliamentary time to do so, given that food law represents but a small proportion of the law that would need to be reconsidered or re-enacted across all sectors.

Fourthly, also from a practical point of view some EU food law standards would have to stay and would remain for many years after Brexit. Take for example the regulation on the maximum residue levels of pesticides in food. After Brexit, the government will continue to need to protect the UK population against being poisoned by its food. However, as it could not afford to employ the number of scientists that would be necessary to replicate the work of the European Food Safety Authority and the co-operative input to it from member states (the current EU list of MRLs runs to about 2,500 pages), it would have to rely upon the work of an external agency such as the EU or the USA. Unless it wished to visit wholesale change on industries that will already be reeling from the need to adapt to the (positive or negative) effects of Brexit, it would have little practical alternative but to stick with the EU list and adopt additions as they are made to it by the EU.

Finally, economic necessity would also constrain the extent to which food law could be repealed or amended. Under any free trade agreement with the EU, the EU would insist on product standards being equivalent to the EU’s. Any UK food exporter wishing to trade with the EU under a free trade agreement, would have to comply with any EU food law relating to product standards, such as safety, additives, labelling, health claims and supplements. The UK government might also find that some third countries may insist on compliance with EU standards as a condition of any new free trade agreement being negotiated with them. The government would, therefore face a choice as to whether to retain the EU laws which impose those standards, as part of UK law for general application in the UK to all businesses, or to enact laws with different standards, applicable to the domestic market alone.

Taking the latter course of action would create, a dual-regulation system; one for UK products manufactured for export to the EU and a different one (lesser or more stringent) for UK products manufactured for the domestic market. That might have a superficial attraction. However, if UK standards were lower it would create a major problem for exporters who also manufacture for the domestic market. Their choice would be to manufacture to the EU standards for both markets and face being uncompetitive in the domestic market compared with manufacturers working within the domestic market only, or to operate dual standards for the same product (EU standards for the product being manufactured for the EU market and UK standards for the product being manufactured for the domestic market).

Probably the most significant piece of legislation that would no longer apply after Brexit is the EU Regulation on quality schemes for foodstuffs, which set up the schemes for Protected Designation of Origin (PDO), Protected Geographical Indication (PGI) and Traditional Speciality Guaranteed (TSG). These are the schemes which protect descriptions such as Cornish Pasty, Stilton Cheese and Melton Mowbray pork pies. Under the current arrangements, it is illegal for products which do not comply with the conditions for a particular PDO, PGI or TSG to be sold as such in the EU. This regulation does not have EEA relevance, which means that upon whatever Brexit solution is finally agreed, the protection for such products will come to an end and manufacturers who have benefited from the protection would have to fall back on expensive “passing off” actions in the civil courts to continue to protect their products. The UK government could re-enact similar legislation, but it would apply only in the UK, not in the EU.