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Effect of Brexit on Food Laws and How Hong Kong Traders of Foodstuffs May Be Affected

The European Commission has published a notice titled “Withdrawal of the United Kingdom and EU Food Law”. It points out that, unless a ratified withdrawal agreement between the EU and the UK establishes a different exit date, all EU primary and secondary law will cease to apply to the UK from 30 March 2019. The UK will then become a “third country”.

Hong Kong traders will be aware that preparing for the withdrawal will not simply be a matter for EU and national authorities, but also for private entities doing business in the UK and the EU. In view of the considerable uncertainties, in particular concerning the content of a possible withdrawal agreement, food business operators are reminded of legal repercussions, which need to be considered when the UK becomes a third country.

It should be noted that, upon exiting the EU, EU food law  will no longer apply to the UK (subject to any transitional arrangement that may be contained in a possible withdrawal agreement) as of the withdrawal date. The legal consequences presented in the notice stem from EU food law with regard to food placed on the EU-27 (rather than EU-28) market as from the withdrawal date and coming from a “third country” (i.e. imported).  

EU food law harmonises the labelling of food placed on the EU market. The applicable rules are set out in, among others, Regulation 1169/2011 on the provision of food information to consumers, and Regulation 1924/2006 on nutrition and health claims made on foods.

Hong Kong’s exporting companies will know that the EU food labelling rules apply to all food placed on the EU market, independently of the place of production of the food. In some instances, EU food law may require some changes in the labelling of food placed on the EU market due to the fact that the UK will be a third country as of the withdrawal date. Examples include the following:

  • Mandatory presentation of the origin of a food product, where the presentation refers to EU or non-EU;
  • Mandatory labelling of the name or business name and address of the EU-27 importer of food coming from a third country (e.g. the United Kingdom as of the withdrawal date);
  • Mandatory health or identification marks. As of the withdrawal date the health mark or the identification mark shall no longer include the “EC” abbreviation, which is reserved for establishments located in the EU, but shall only include the name of the country (in full or with the ISO two-letter code) where the establishment is located.

Hong Kong’s food business operators are therefore advised to assess the need for possible changes to the labelling of food placed on the EU-27 market as of the UK’s withdrawal date.

In addition, certain foodstuffs must not be placed on the EU market unless it has been approved by the Commission (for example for food additives, food flavourings, smoke flavourings, vitamins and minerals used in food, including in food supplements and any novel food) or an individual applicant has obtained an authorisation by the Commission (for example for genetically modified food).  

Certain food is subject to specific composition requirements and EU food law sets limits for contaminants, and maximum residue levels of active substances. In addition, food contact materials placed on the EU market are subject to EU rules. EU law on food ingredients and food composition, as well as EU law setting limits for contaminants and residues in food, apply to all foods placed on the EU market, independently of the place of production of the food. The same applies for food contact materials.

According to EU food law, in some instances the food business operators, authorisation holders, or their representatives have to be established in the EU. For example, according to the law on genetically modified food and feed, the applicant for an EU authorisation or his representative shall be established in the EU. As of the withdrawal date, establishment in the UK no longer complies with this requirement.  Moreover, according to EU food law, in some instances EU authorisations require the submission of an authorisation dossier through the competent authority of an EU Member State. Examples include – in the case of food contact materials – the requirement for applications for authorisations of substances to be made via a competent authority of an EU Member State. As of the withdrawal date, applications through the competent authority of the UK are no longer possible.

EU food law also sets rules for the production of food in the EU and in third countries, if this food is placed on the EU market. EU food law moreover provides for specific checks upon entry of food into the EU. Food business operators importing products of animal origin, for example, shall ensure that import takes place only if certain conditions (outlined in the notice) are respected.

As of the withdrawal date, these substantial requirements will be inspected upon entry into the EU-27 by applying mandatory border checks at the first point of entry into the Union territory. The food at issue will only be allowed to enter the EU-27 through approved “border inspection posts”; each consignment will have to undergo documentary and identity checks, as well as physical checks at an appropriate frequency; and each consignment will have to be accompanied by a certificate in compliance with EU food legislation.

For further details, please click on the following to view the notice.

Content provided by Picture: HKTDC Research
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