Bonfire of EU Laws: FSA chair applauded for highlighting implications for food safety and public health of the Brexit Freedoms Bill
At the heart of the work and ethos of the Academy of Nutrition Sciences is promotion of an evidence based approach to the setting of food standards and public health policy.
Many of us may have thought the proposed ‘Bonfire of the EU Laws’ held little significance for those working in the area of food and nutrition. However this is not the case since many of the existing laws governing food and feed safety and nutrition are at risk of being removed before any new legislation is developed. The Trustees of the Academy therefore applaud the approach being taken by the FSA’s Chair, Professor Susan Jebb, to highlight the adverse implications of the current timetable for establishing domestic legislation following Brexit, with sunsetting of any EU regulations and directives not already replaced by new domestic laws by the end of 2023.
We agree there are profound implications for food safety and public health if this complex process is rushed. Whilst the UK’s exit from the EU provides an opportunity to review and reform existing legislation, which was retained for continuity at the point when the UK left the EU, there is a considerable risk that undue haste, particularly in the current climate, will result in ‘throwing the baby out with the bath water’.
We agree with the FSA that being outside the EU provides an opportunity for a “comprehensive rethink, tailored to the needs of the UK”, and that “developing policy in an evidence-based, open and transparent way is better for consumers and for businesses, but this takes time to get it right”.
Context to the review of food legislation
In summary, the UK voted to leave the EU, its nearest and biggest trading partner, in 2016 and officially left on 31 January 2020. However, both sides agreed to keep many things the same until 31 December 2020, to allow enough time to agree terms for a new trading deal.
From 1 January 2021, EU regulations and tertiary legislation, including those relating to general food law and to nutrition, were retained as UK law, in accordance with the European Union (Withdrawal) Act 2018. Retained EU law includes over 2400 pieces of law across 300 policy areas and 21 sectors of the economy (The Retained EU Law (Revocation and Reform) Bill 2022 - GOV.UK (www.gov.uk). An interactive dashboard tool is available that illustrates the status of existing Retained EU law across government departments and by topic Retained EU law dashboard - GOV.UK (www.gov.uk)
The Retained EU Law (Revocation and Reform) Bill will automatically ‘sunset’ all Retained EU law on 31 December 2023 unless Ministers have decided to extend, preserve or replace each individual piece of legislation. This means that any remaining Retained EU laws with be repealed automatically. The aim of the legislation is to enable the UK government to create regulations tailor-made to the UK’s own needs, cutting red tape and supporting businesses to invest, stimulating economic growth across the UK economy. However, the timeframe for establishing new domestic law represents a challenging task for those advising Ministers, as outlined by Prof Susan Jebb (Chair's stakeholder update - Food safety must be carefully considered in Brexit Freedoms Bill | Food Standards Agency).
It is understood that the Food Standards Agency (FSA) has responsibility for more than 800 pieces of law covering food and feed safety and standards in England, this includes legislation covering the safety of novel foods and ingredients, animal feed products and genetically modified products. Feed and food safety and standards are devolved matters in the UK. The FSA has produced a guide to food and feed law (food-and-feed-law-guide-july-2020.pdf ).
In relation to nutrition legislation, the Nutrition (Amendment etc.) (EU Exit) Regulations 2019 and the Nutrition (Amendment etc.) (EU Exit) Regulations 2020 transferred responsibilities and functions to legislate, in respect of nutrition legislation, from the EU Commission to the competent authorities in Great Britain (GB), including the devolved nations. Nutrition related legislation includes that related to nutrition labelling, nutrition & health claims, addition of nutrients to foods/ fortification, food supplements, and foods for specific groups. More details can be found at Nutrition legislation information sheet - GOV.UK (www.gov.uk). Under the terms of the Protocol on Ireland/Northern Ireland (NIP), EU law continues to apply for goods produced or sold in Northern Ireland, including most food and feed law.
Pertinent work from the Academy
In offering our support to the FSA’s position, we advised that the Academy has very recently published a Position Paper in the British Journal of Nutrition that considers the regulation of nutrition and health claims, around the world but with a specific focus on Europe (Nature of the evidence base and strengths, challenges and recommendations in the area of nutrition and health claims: a position paper from the Academy of Nutrition Sciences | British Journal of Nutrition | Cambridge Core).
The Position Paper summarises current health claims regulations for the EU and GB, with comparisons to approaches used by other countries where different levels of claims are permitted (e.g. so-called ‘qualified claims’ that require less robust substantiation in the USA and the self-substantiation option that operates in Australia & New Zealand). The Academy Position Paper emphasises the strengths of the current UK approach used to determine authorisation of health claims and the learnings gained through the implementation of the European Food Safety Authority (EFSA) evidence-based process for assessment of proposed claims, and the corresponding risk assessment process that is now undertaken independently in GB by the UK Nutrition and Health Claims Committee (UKNHCC). It also identifies aspects of risk assessment/ management that may warrant review and potential reform, making recommendations that focus on remaining challenges for nutrition science, consumer understanding and for key stakeholders, including practising health professionals.
An important part of the EFSA approach to ensuring public safety from unfounded health claims for novel foods, new to the market, is the separation of safety from efficacy. Thus, putting a new food onto the market occurs in two phases; the first demonstrating that the food is safe, and then the second showing that the food has an effect on a biomarker for disease. These two stages can be carried out in parallel, but that both are achieved is essential for public health and wellbeing. We consider that this approach is effective and, indeed, in the UK we have the structure in place to achieve this, with the Advisory Committee on Novel Foods and Processes (ACNFP) running in parallel with UKNHCC.
The Academy has also published a Position Paper focused on the nature of the evidence base used in nutrition science and frameworks underpinning dietary recommendations for prevention of non-communicable diseases such as cancers and cardiovascular diseases (http://dx.doi.org/10.1017/S0007114520005000). The Academy considers that these two publications together provide a useful basis for consideration of the governance of closely linked activities such as food safety and food efficacy in terms of nutrition.
It is also important that the UK has a robust system of regulation and standards for animal feed ingredients. While recognising that consumption of animal-derived foods, as a proportion of total food consumed, is likely to decline in coming decades in line with dietary recommendations for health and environmental impact, it is vital to ensure the sustainability of the remaining livestock sector, not least because of the nutrient dense nature of such foods. In the post-Brexit era, opportunities exist for the UK to utilize its internationally-recognised strengths in food and feed technologies to address this challenge. These include development of animal feed with a lower environmental impact and human-edible protein sources using novel ingredients, which are expected to include novel plant sources, insects and single cell organisms, and potentially the use of novel technologies. In this context, transparent, evidence-based and fit-for-purpose legislation will be vital to ensure the health and welfare of both livestock and consumers, and to support growth of UK business.
The Academy strongly supports the FSA’s call for a realistic time frame for the important programme of work required to determine whether individual pieces of Retained EU Law (REUL) should be preserved, extended or replaced. We also support the idea of integrating all pertinent legislation into a new UK Food and Feed Bill.