“Watering down food regulation?” UK Trade Policy Observatory cautious over possible US-UK trade deals

13 Sep 2019 --- UK Prime Minister Boris Johnson has a clear path to weakening key food regulations in pursuit of a UK-US trade deal, warns new analysis. Legal experts at the University of Sussex-based UK Trade Policy Observatory (UK TPO) caution that Britain faces the prospect of watered-down food regulations after Brexit, with Parliament having little say. Stringent regulation, which currently restricts some of the more controversial US food products from UK supermarket shelves, could be stripped away with minimal Parliamentary scrutiny through Statutory Instruments (SIs).

The concerns center on the potential of loosening EU restrictions on Genetically Modified Organisms (GMOs), pesticides, food additives, hormone-enhanced meat and accepting imports of chlorinated chicken. Washing chicken with chlorine has been banned in the EU since 1997 due to food safety concerns. The EU’s issue is not the consumption of chlorine itself, but that such a practice could mask poor hygiene standards, such as dirty abattoirs.

The use of SIs would allow the prime minister the opportunity to ratify a US-UK Free Trade Agreement (FTA) – particularly as the UK Parliament has a much weaker influence on treaty negotiation in comparison to either the US or EU, notes UK TPO. 

The EU Withdrawal Act 2018 allowed the creation of over 10,000 pages of new legislation to retain EU rules, including on food safety. Some of these provide extensive scope for ministers to make future changes to food safety legislation, notably potentially significant concessions to the US over GM crops and pesticides. This could be in the pursuit of a trade deal and lack the level of scrutiny that primary legislation would provide.

According to the UK TPO, a UK-US trade deal could prove extremely unpopular with the UK public because of concerns over retaining high food standards. 

This risk is most applicable in the event of no-deal or in a scenario of a basic free trade agreement (FTA) with the EU, notes UK TPO. Parliament would have only limited means of opposition through blocking ratification of an FTA or specific SIs.

“In the event of no-deal or a basic EU-UK FTA, the UK government will be under pressure to make a success of Brexit through new trade agreements,” says Dr. Emily Lydgate, Senior Lecturer in Environmental Law at the University of Sussex and Fellow of the UK TPO. “The concern is that ministers have extensive scope to make significant food safety concessions in order to reach an agreement with the US. This is potentially in the face of opposition from consumers or food producers who would worry about losing access to the EU market.”

“The US has long complained about the EU’s hazard-based approach to banning some pesticides categorically, rather than permitting their residues. It also dislikes the lengthy EU process for approving new GM crops, which the US Trade Representative (USTR) estimates costs US agriculture US$2 billion a year.”

Chloe Anthony, an LLM student at the University of Sussex, says the real risk is that there are SIs giving ministers a lot of power on controversial policy areas that the US will be pushing very hard to reform. “Through SIs, UK ministers can amend, revoke and make regulations on how active ingredients in pesticides are authorized, the maximum residue levels permitted in food and the GMO application and authorization process,” she says.

The UK TPO warning closely follows the UK Government publishing the details of its Yellowhammer contingency plan, a document setting out a series of “reasonable worst-case assumptions” for the impact of a no-deal Brexit on October 31. 

It warns about food shortages, noting “critical dependencies for the food chain” such as key ingredients potentially being in “in shorter supply.” It also acknowledges potential delays at Dover and other channel crossings for at least three months. Yellowhammer also says that the reduced availability and choice of certain products will push up prices. 

Commenting on the newly released Yellowhammer documents, Helen Dickinson, Chief Executive of the British Retail Consortium, says they confirm what retailers have been saying for the last three years – fresh food availability will decrease, consumer choice will decrease and prices will rise. “This isn’t good for the British public and this isn’t good for British retailers,” she says. “A no-deal Brexit in November represents the worst possible timing for the retail industry and the consumers it serves.”

“Warehousing availability will be limited as retailers prepare for Black Friday and Christmas and many fresh fruit and vegetables will be out of season in the UK. Additionally, imports will be hampered by disruption through the Channel Straits that could reduce flow by up to 60 percent for up to three months.”

Dickinson stresses that while retailers are doing all they can to prepare for a no-deal Brexit, it is impossible to completely mitigate the negative impact it would have. “The fact remains that a damaging, no-deal Brexit is in no one’s interests. It is vital that a solution is quickly found that ensures frictionless tariff-free trade with the EU after our departure,” she adds. 

By Gaynor Selby