Regulation discrepancies? New report highlights risks to food safety standards post-Brexit

05 Nov 2019 --- New checks and controls could be required on Welsh and Scottish borders because of diverging food safety standards post-Brexit, warns a new report. Such changes are argued to have the potential to vastly “increase the devolution of food safety regulation” as Scottish and Welsh authorities are committing to retain EU regulations following the UK’s withdrawal from the bloc – creating the prospect of trade barriers between England and Scotland or Wales. The analysis by the UK Trade Policy Observatory (UKTPO) also warns that a negotiated UK-US trade deal may further exacerbate tensions.

“The UK Government has a US trade deal as a top priority. The US has stated negotiating objectives for the UK that encompass changes to food safety in all the areas we cover in our briefing. The intense economic and political pressures to strike a UK-US trade deal as quickly as possible could prompt ministers to change the rules,” Dr. Emily Lydgate, Senior Lecturer in Environmental Law at the University of Sussex, which led the analysis, tells FoodIngredientsFirst.

The report contends that the US approach to food safety differs notably from that of the EU. US industry players have previously highlighted that the UK’s departure from strict EU legislation could present lucrative trade opportunities for US exports. Additionally, the US has made clear that aligning UK rules and standards with US regulations is a prioritized negotiating objective in a trade agreement.

Imports of chlorinated chicken are among post-Brexit food safety concerns.In particular, the UKTPO analysis warns of the potential for very different regulatory approaches between the UK government and devolved authorities toward controversial food practices including chlorinated chicken, GM crops and pesticides.

“The fear of weakening food safety standards for a US trade deal, and in particular ‘chlorinated chicken,’ have become symbolic issues for public resistance to Brexit. It is certainly possible to imagine frustrated Remain voters transferring those frustrations onto the US trade negotiation and resisting changes to EU-derived food safety rules very strongly,” asserts Dr. Lydgate.

The existence of these new discrepancies would likely have a significant and detrimental impact on the UK’s ability to strike trade deals, the report’s authors outline. The UKTPO analysis suggests the UK’s post-Brexit food safety rules will fall short of the level of protection currently provided by the EU.

Dr. Lydgate further argues that negotiating a US trade deal that Scotland opposes is “certainly not viable,” and could even fuel a push for Scottish independence. “If one or more devolved administration refuses to re-align its food safety regulations from those of the EU to comply with US standards after a US-UK Free Trade Agreement, it will complicate the flows of agricultural and food products within the UK,” she explains.

“This raises the question of how the UK can avoid introducing internal UK regulatory controls and border checks to ensure that products comply with divergent jurisdictional requirements,” she adds.

Flash policy changes
Under the EU (Withdrawal) Act 2018, the UK government has issued proposed Statutory Instruments (SIs). The Brexit SIs confer powers to amend and make future food safety laws to ministers of England, Scotland and Wales – allowing for a “greater scope for devolution beyond what is possible in the current EU framework,” as noted by the analysis.

“Our analysis suggests Brexit SIs will allow ministers to exercise considerable powers of discretion when authorizing ingredients in pesticide products, amending GMO authorizations and thresholds for labeling, authorizing food additives and approving substances for animal carcass washes,” asserts Erik Millstone, Emeritus Professor in the Science Policy Research Unit (SPRU) at the University of Sussex.

“Food safety SIs are a potential flash-point for Scotland, which wants to maintain alignment with the EU, and Westminster, which promises to pursue a US trade deaBrexit SIs will allow ministers to exercise “considerable powers of discretion” when authorizing food ingredients.l that will alter UK food safety legislation,” adds Dr. Lydgate.

UK ministers have been granted extensive powers to make secondary legislation to correct “deficiencies” in “retained EU law.” The UKTPO analysis warns these powers are being used to change key policy areas and legal frameworks.

Examples include:

• Replacing EU requirement for independent scientific assessments on the safety of pesticides with the discretion for ministers to decide whether or not to obtain independent scientific advice.
• Omitting in UK Government SIs an EU provision for an “effective, proportionate and dissuasive,” penalty regime for infringements.
• Allowing Ministers to lower the threshold for products containing technically unavoidable traces of GMOs that do not need to be labeled.
• Revoking UK participation in RASFF, which provides a system for notifying EU member states of unsafe and rejected consignments of food products. Leaves the UK an easier target for dishonest traders to unload rejected consignments and potentially lessening the appetite for UK food products within EU member states who would no longer be made aware of UK rejections.

“Our analysis suggests Brexit SIs will allow ministers to exercise considerable powers of discretion when authorizing ingredients in pesticide products, amending GMO authorizations and thresholds for labeling, authorizing food additives and approving substances for animal carcass washes,” says Millstone.

“Ministers may issue guidance impacting substantive policy content or make new rules governing food safety by secondary legislation, without proper Parliamentary scrutiny, and using powers that exceed those vested by the EU in the European Commission. Those considerable powers could be a way to overcoming Parliamentary resistance and public opposition to aspects of a UK-US trade deal,” he adds.

The the report’s academics recommend four steps to avoid the worst- case scenarios of weakened and imbalanced food safety regulations in the UK after Brexit:

• Primary legislation should be required for reforms of legislative frameworks and major policy changes for food safety.
• Scrutiny procedures for Brexit SIs should be enhanced by providing Parliament with the ability to amend those instruments.
• Give devolved nations strong oversight over UK external trade negotiations and encourage devolved nations to harmonize food standards where necessary for the internal UK market.
• Parliament should adopt legislation stipulating that, if the ratification of a post-Brexit Trade Agreement requires changes to statutory protection in food safety, the environment and animal welfare, such changes must be made through primary legislation.

By Benjamin Ferrer