"Divergence began on day one of Brexit and it's currently increasing at a rate that, to be honest, is quite alarming for food businesses that want to trade across GB, NI and the EU."
These were the words of Sam Jennings, technical director at the Council for Responsible Nutrition (CRN) UK, during her presentation for Vitafoods Virtual Expo in which she discussed the legislative divergence that has occurred since Brexit.
"We are living in very interesting time here in the UK. They may not be what all of us chose, or wanted, but we now have to make the most of whatever happens and through it all, push for the best outcome for our sector."
She explained that, to make matters more complicated, Northern Ireland (NI) still follows EU food law while GB (England, Scotland and Wales) does not. Plus, the countries within GB have their own legislation for food labelling, nutrition areas, food standards, safety, and hygiene.
"So not only do businesses face divergence from the EU but they also face the theoretical divergence from other countries within the UK."
However, to try to avoid this headache, the four nations in the UK have created non-legislative "common frameworks" to help reduce divergence between them. These common frameworks cover: nutrition, food and feed safety and hygiene, and food compositional standards and labelling.
Retained EU Law (Revocation and Reform) Bill
Importantly, in September, the Retained EU Law (Revocation and Reform) Bill was laid in UK parliament. If this passes through to law, by the end of 2023 all retained EU law must be entered into domestic law, either in full or with amendments, or it will be completely revoked.
"The full impact of the Retained EU Law (revocation and reform) Bill, if it gets through law, is still unknown but it's already creating rather a rather large amount of concern," Jennings said, although she notes that there is a possible allowance for a later deadline for some laws if a revision is required.
“There are over 1,000 pieces of legislation that need to be looked at in relation to this bill so the work involved is going to be extensive in terms of deciding what will move across unchanged, what should be revised and what can be lost.
“We are currently being assured there is no intention to reduce standards, to put consumer safety at risk, or to adversely impact trade.”
Current divergences
Jennings listed the divergences that have already occurred since Brexit.
Novel Foods
Foods which are granted novel foods status in the rest of the EU are not granted that status in GB. The company has to apply for authorisation in GB separately.
What's more, there have been more than 30 amendments published to the EU Union list of novel foods since January 1st, versus just one amendment for the list in GB.
Positive lists
In the UK and EU there are positive lists for vitamins and minerals that can be used in food supplements - there is a list informing which are allowed to be used in supplements, and a second giving the sources that are allowed to be used.
Since Brexit, the EU has added two new sources to the list – nicotinamide riboside chloride and magnesium citrate malate – meaning they can be placed in EU and NI markets.
These are still waiting to go through GB law so neither are currently allowed on that market there.
In terms of food additives, the most high-profile food additive prohibition was that of E171 titanium dioxide. However the UK scientific committee didn’t agree with the conclusions reached by EFSA so it is currently undertaking its own safety risk assessment and the result is expected in the first quarter of 2023. In the meantime, this additive is still allowed in GB.
In terms of flavourings, the EU has recently removed 22 flavourings from the list, whereas GB has only just received the request to remove them.
There’s also divergence in contaminants levels. Since Brexit occurred there were maximum levels set for 3-MCPD in fish and marine oils, for Delta 9 THC in hemp seed oil, and for lead and cadmium in specific foods. No changes have been made yet in GB contaminants law.
Labelling
Also due to divergence in labelling law, products which contain copper which are marketed across GB and the EU have to declare the content of this in both micrograms (µg, for GB) and milligrams (mg, for EU).
What’s more, a health claim was authorised in the EU in April 2021 for carbohydrate solutions stating: “Carbohydrate solutions contribute to the improvement of physical performance during a high-intensity and long-lasting physical exercise in trained adults”.
But a request for this claim hasn’t been submitted to GB so it can’t be made in those countries.
Prohibitions
Article 8 of regulation 1925/2006 states that member states can submit to the European Commission (EC) if they have safety concerns with any particular substances. Before the UK left the EU there were two substances prohibited under this legislation – ephedra and yohimbe. These prohibitions apply across the EU and the UK.
Since Brexit, the EU# has implemented prohibitions on hydroxyanthracene derivatives in Aloe preparations and for monacolins from red yeast rice, plus there are soon to be prohibitions published for green tea catechins. Whereas the GB is currently only at the risk analysis stage for these substances so there is a divergence between the regions at least for the time being.
Animal Health Regulation
The EU’s new Animal Health Regulation applies in the EU and NI but not in GB, meaning there are a number of differences in import requirements, including rules for composite products and gelatin capsules.
Jennings points out the good news is that the UK has kept the dossier requirements virtually identical to the requirements for dossiers submitted to the EU, making it easy to make applications across both regions.
“If your business is making a submission to the EU for changing one of the lists, please also make a submission to GB for changing their list. This will help reduce the amount of divergence and increase the potential market for your product.”