Dr David Jukes, The University of Reading, UK

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Food Law News - UK - 2017

Government Chemist, 23 August 2017

LEGISLATION - Food and Feed Law: legislation review (April - June 2017)

For a copy of the review available on this site, see: Food and Feed Law: legislation review (April - June 2017) The following is main part of the 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 April to June 2017.

Owing to work on UK withdrawal from the EU and ‘purdah’, the period leading up to an election during which government departments generally refrain from making new announcements, domestic legislative changes were scant.

The two main overarching themes remained exiting the EU and the modernisation of EU food and feed law.

Exiting the EU

The policy paper ‘Legislating for the United Kingdom’s withdrawal from the European Union’ was updated on 15 May 2017 with more detailed text on EU legislation, including treaties, that will be converted into domestic law on the day the UK leaves the EU, subject to the exceptions set out in the paper. There is no explicit reference to food or feed but, for example, legislation may refer to the involvement of an EU institution or be predicated on UK membership of, or access to, an EU regime or system. Once the UK has left the EU, steps must be taken to ensure that the UK statute book continues to function. Moreover, EU Directives require domestic implementation which would expire if the European Communities Act under which much of the conversion has been done, was simply repealed. Thus the ‘Repeal Bill’ will create a power to correct the statute book where necessary over time. Some legislation will necessarily need to await the conclusion of negotiations with the EU which commenced on 19 June 2017. EUR-Lex has established a nonexhaustive list of documents related to the UK’s planned withdrawal from the EU as well as a list of useful links on the subject (see Section 1.1).

Official controls law updated

Modernisation of European food and feed law took a further significant step forward with the replacement of Regulation (EC) No 882/2004 on official controls by Regulation (EU) 2017/625 of the European Parliament and of the Council of 15 March 2017 on official controls and other official activities published in the Official Journal on 7 April 2017. Regulation 2017/625 supplements Regulation (EC) No 178/2002 and, stemming from the Treaty on the Functioning of the European Union, aims for a high level of:

Food and feed must be safe and wholesome and activities which might impact on the safety of the agri-food chain, or on the protection of consumers’ interests in relation to food and food information, must be performed in accordance with specific requirements. The correct application of (European) ‘Union agri-food chain legislation’ must also guard against the possible spread of animal diseases, in some cases transmissible to humans, or of pests injurious to plants or plant products, and ensure the protection of the environment from risks that might arise from genetically modified organisms (GMOs) or plant protection products.

Much of the proposed Regulation will be familiar to those conversant with Regulation 882/2004 but the detection and prevention of potential fraudulent or deceptive practices in the agri-food chain are accorded considerable recognition in the new regulation.

The quality of performance of official controls by Member State authorities is laid out in detail and, in particular, suspicions and detection of non-compliance with agri-food chain legislation must be investigated to determine its origin and extent as well as the operators’ responsibilities to remedy the situation and prevent further non-compliance. The organisation and performance of investigations and enforcement actions by the competent authorities should duly take into account potential risks and the likelihood of fraudulent or deceptive practices along the agri-food chain.

Official controls should be thorough and effective but limited, with regard to the burden on food or feed business operators, to that which is necessary for efficiency and effectiveness. Food and feed business operators should have the right, subject to national law, to appeal against the decisions taken by the competent authorities and should be informed of that right. Moreover, those whose animals or goods are subject to sampling, analysis, test or diagnosis have the right to a second expert opinion at their own expense, including documentary review by another expert or, unless technically impossible or irrelevant, a second analysis, test or diagnosis of the parts of the sampling material taken initially.

The new Regulation 2017/625 on official controls and other official activities does not cover:

Analytical methods are covered in detail, repeat previous requirements for accreditation to EN ISO/IEC 17025 in accordance with Regulation (EC) No 765/2008, and Annex III to the Regulation carries forward previous attributes for the characterisation of methods of analysis.

Internet trading is dealt with: for controls on internet trading or other remote means, competent authorities can obtain samples through anonymously placed orders (‘mystery shopping’) for testing. All steps should be taken by the competent authorities to preserve the rights of the operators to a second expert opinion.

Member States must devote adequate and stable financial resources to official controls and other official activities which must be in place alongside food and feed businesses own checks. However fees for official controls are permitted in certain circumstances and should cover, but not exceed, the costs, including overhead costs, incurred by the competent authorities to perform official controls and be fully transparent.

The roles and responsibilities of European Union reference laboratories and national reference laboratories are carried forward. Rapid Alert Systems are updated to include where potential fraudulent or deceptive practices have or could have a cross-border dimension. Disruptions in a Member State’s control systems could trigger Commission action to adopt measures aimed at containing or eliminating risks arising in the agri-food chain, pending the necessary action to be taken by the Member State concerned to remedy the disruption in the control system.

Infringements of the rules of the Union agri-food chain legislation and of this Regulation must be subject to effective, dissuasive and proportionate penalties at national level. For financial penalties applicable to violations due to fraudulent or deceptive practices to be sufficiently deterrent, they should be set at a level which seeks to exceed the undue advantage for the perpetrator resulting from those practices.

The Regulation aims to ensure that adequate arrangements are in place to enable any person to alert the competent authorities to possible infringements of this Regulation and to protect that person from retaliation.

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