In the final batch of technical notices, the UK Government has provided guidance on what impact traders can expect on food labelling and packaging in the event that the UK exits the EU without a Withdrawal Agreement on 29 March 2019.
Currently, EU rules, such as EU Regulation 1169/2011 or “FIC”, govern food labelling and minimum compositional standards (with some exceptions) for foods in the UK.
As explained in a previous blog, from 29 March 2019, these EU-based rules will be absorbed into English law as part of the Withdrawal Act and adapted where necessary by way of statutory instruments to ensure they apply as intended. There will however be a number of additional changes required to food labels to reflect the fact that the UK will no longer be a member of the EU:
(a) Origin labelling: For food and ingredients from the UK, the use of the term “EU” in origin labelling will no longer be correct and the term “UK” will need to be used instead.
The UK Government will also consider whether to implement rules on mandatory indications of country of origin or place of provenance on food labels to mirror the EU requirement to this effect that will apply from April 2020.
(b) Addresses on labels: For pre-packed products sold in the EU, the label currently needs to include the name and address in the EU of the responsible food business operator. Following 29 March 2019, labelling of pre-packed products sold in the UK and the EU will need to include both a UK address and an EU address to be valid in both markets. UK producers may need to set up a hub in another EU member state or work with an EU importer to be able to provide an EU address.
In order to mitigate the immediate effect of this change, the UK Government will allow for pre-packed products bearing an EU address and already placed on the UK market to be sold through until stocks run out. It is also considering whether products bearing an EU address should be allowed to be placed on the market for a period of up to 6 months following a no-deal Brexit.
(c) Natural Mineral Waters (NMWs): Currently, NMWs must undergo a specific recognition process based on EU rules in order to be marketed across the EU. Following a no-deal Brexit, the Government intends to amend domestic regulations to ensure that NMW recognitions granted in the EU will continue to be effective across the UK. However, NMWs recognised in the UK may no longer be accepted in the EU and NMW producers may have to make an application for recognition in the EU through one of the remaining member states. Such applications will be treated as ‘third country’ applications.
Currently, food and drink producers in the EU can protect the name of their products under the geographic indication (GI) regime, which protects GIs from imitation throughout the EU. At the moment, there are 86 GI-protected UK product names relating to food and drink products (including Cornish Pasty, Jersey Royal Potatoes and Cumberland Sausage) that together make up around 25% of the value of UK food and drink exports.
Following the UK’s exit from the EU, the UK will set up its own GI scheme, including a UK GI logo, that will mirror the EU regime and is intended to be no more burdensome for producers. Existing UK GIs will be given new UK GI status automatically. Further guidance will be published on the UK GI scheme in early 2019.
Current UK GIs may not continue to be protected under the EU GI regime after Brexit. UK producers wishing to retain their EU GI status and the right to use the EU GI logo will need to apply to the European Commission as a ‘third country’ applicant.
UK producers may also want to consider protecting their products by applying for EU Collective Marks or EU Certification Marks through the EU Intellectual Property Office or indirectly through the World International Property Organisation.
As expected, these notices indicate that a no-deal Brexit is likely to result in a number of practical issues for UK food and drink producers and greater obstacles to selling UK products in both the UK and the EU. The UK Government continues to stress its intention to reach a deal with the EU, but in the meantime, businesses must continue to prepare for a worst-case scenario.