Dr David Jukes, The University of Reading, UK

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Food Law News - UK - 2017

Government Chemist, 15 June 2017

LEGISLATION - Food and Feed Law: legislation review (January - March 2017)

For a copy of the review available on this site, see: Food and Feed Law: legislation review (January - March 2017) The following is the Executive Summary from the report:

This report updates the main text of our legislation review with developments in food and feed law and related scientific and regulatory issues for the period from January to March 2017.

The two main overarching themes in the period January to March 2017 were exiting the EU and the modernisation of EU food and feed law.

The Supreme Court judgement on R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) given on 24 January 2017 gives interesting background on the UK’s relationship with the EU. The Supreme Court dismissed (two members dissenting) an appeal from the Secretary of State for Exiting the European Union against the decision of the English and Welsh Divisional Court upholding recourse to Parliament to bring about changes in domestic law in relation to exiting the EU. Devolution arguments relating to Northern Ireland, Scotland and Wales were also considered.

Consequently, the European Union (Notification of Withdrawal) Act 2017 was given Royal assent on 16 March 2017 and conferred power on the Prime Minister to notify, under Article 50 (2) of the Treaty on European Union, the United Kingdom's intention to withdraw from the EU.

The Prime Minister applied the powers conferred by the Act on 29 March, writing to European Council President Donald Tusk to notify him of the UK’s intention to leave the EU.

A White paper published in February 2017 gave more details on the ‘Great Repeal Bill’ to remove the European Communities Act 1972 from the statute book and convert the ‘acquis’ – the body of existing EU law – into domestic law. This appears to mean that, wherever practical and appropriate, the same rules and laws will apply on the day after we leave the EU as they did before. This suggests food and feed law will remain initially unchanged. The White paper goes on to state that once the UK has left the EU, Parliament (and, where appropriate, the devolved legislatures) will decide which elements of that law to keep, amend or repeal.

Modernisation of European food and feed law took a significant step forward in February 2017 with the European Commission, Parliament and Council of Ministers reaching political agreement on a compromise text for a new all-encompassing Regulation on food controls. The general objective of the proposed Regulation is to simplify and streamline the existing legal framework of Regulation (EC) No 882/2004, encompassing almost all sectors of the agri-food chain in a unique set of rules applicable to official controls. The Regulation also aims to improve the efficiency of official controls performed by the Member States along the agri-food chain so as to allow for quick responses in crisis situations, while minimising the burden for operators.

Much of the proposed Regulation – which runs to 99 recitals and 167 Articles – will be familiar to those conversant with Regulation 882/2004. The proposal is dealt with more fully in the main text of our report however two aspects may be useful to highlight. One is that the proposed Regulation envisages recovery of costs for official controls from businesses, with non-compliant businesses paying more than compliant ones, and a series of administrative rules are elaborated in the draft. The other is that the draft Regulation includes in its Article 35 text that rehearses and extends the familiar provision of Article 11(5) of Regulation 882/2004 on supplementary expert opinion, now referred to as ‘second expert opinion’. The writer’s view is that the proposed Article 35 text is a useful extension of extant EU law in this area. The current UK Government Chemist arrangements for technical appeal (referee analysis) are likely to address the proposed requirements. Moreover with a long history of implementation, and tailored to UK circumstances, present UK arrangements may prove to be more streamlined and hence more effective.

On a more detailed level new developments included further work on antimicrobial resistance, AMR, mineral oil hydrocarbons, legal highs, novel food, and methods for starch determination. On 17 February 2017 the Codex Secretariat published the report of the working group on AMR, hosted by the UK and co-chaired by the USA and Australia, which met in London from 29 November to 2 December 2016. The report is available online as a working document of the 40th Codex Alimentarius Commission which will take place in Geneva in July 2017.

Mineral oil hydrocarbons (MOH), mineral oil aromatic hydrocarbons (MOAH) and mineral oil saturated hydrocarbons (MOSH) can have detrimental health effects on ingestion, with migration from food contact materials such as paper and board packaging suspected to contribute significantly to the total exposure. Thus a Commission Recommendation of January 2017 advised on the monitoring of mineral oil hydrocarbons in food and in materials and articles intended to come into contact with food. The European Union Reference Laboratory (EU-RL) for Food Contact Materials is mandated to develop guidance on methods of sampling and analysis.

A Council Implementing Decision of February 2017 signals control measures in some member state’s national law for the ‘illegal high’ methyl 2-[[1-(cyclohexylmethyl)-1H-indole-3-carbonyl]amino]-3,3-dimethylbutanoate (MDMB-CHMICA). This compound, a synthetic cannabinoid, has given rise to multiple reports of violence and aggression, poses a risk to driving as a consequence of its use and a total of 28 deaths and 25 acute intoxications have been reported. While the UK is not bound by the overarching legislation, and is not adopting the Decision, domestic law is expected to deal with the issue.

A new novel food was authorised, fermented soybean extract. EFSA have advised that this contains nattokinase which exhibits in vitro fibrinolytic activity and in vivo thrombolytic activity in animals when administered parenterally. It is therefore necessary to inform consumers about the need of medical supervision in cases when fermented soybean extract is consumed in combination with medication. These conditions are enforced by the authorising regulation.

In an interesting Regulation on the method of analysis for the determination of starch content in feed and classification in the Combined Nomenclature it was determined that of the two methods  previously permitted, enzymatic and polarimetric, only the former is suitable (and now permitted as the method the customs authorities are to use) where soya products are present.

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