[co-author: Marina Fröhlich]

The United Kingdom (UK) left the European Union (EU) on 31 January 2020. While the EU and the UK lastly agreed on a withdrawal agreement and thus can avoid an unregulated Brexit, specific rules for trading UK goods on the EU market after the end of the transition period on 31 December 2020 do not exist (yet).

Upon expiry of the transition period, the UK will be a third country and EU food laws will no longer apply to it. Also, foodstuffs imported from the UK into the EU will no longer be products of EU origin. As manufacturers of foodstuffs and other stakeholders need to prepare for the changes combined with the UK’s withdrawal from the EU, the European Commission published a Notice to Stakeholders laying out the consequences for trading foodstuffs from third countries such as the UK.

FOOD LABELING AND FOOD INFORMATION, HEALTH, AND IDENTIFICATION MARKS

In its notice paper, the European Commission firstly points out that the EU food labeling rules apply to all food placed on the EU market, independently of the place of production of the food. Therefore, EU food law may require changes of the labeling of food that is produced in the UK and will be placed on the EU market from January 2021 on.

Hence, any product produced in the UK bearing the EU organic logo must be labelled as “non-EU Agriculture” instead of “EU Agriculture” when agricultural raw material has been farmed in the UK or other third countries. The same applies where (parts of) a honey blend have been harvested in the UK. Such honey blends must be labeled as “blend of non-EU honeys” instead of, as formerly, “blend of EU honeys”. Also, any health or identification mark on foods of animal origin produced in the UK may no longer include the “EC” abbreviation, which is reserved for establishments located in the EU. Instead it must include the name of the country (in full, or the ISO two-letter code) where the establishment is located and the approval number of this establishment.

A further novelty will be that foodstuffs imported from the UK into the EU will need to bear the name or business name and address of the EU importer.

REQUIREMENTS FOR FOOD BUSINESS OPERATORS AND AUTHORIZATION HOLDERS, OR THEIR REPRESENTATIVES, TO BE ESTABLISHED IN THE EU

Furthermore, in some instances, the food business operators, authorization holders, or their representatives must be established in the EU in order to be allowed to place foodstuffs in the EU market. Also, any applicant for an EU authorization for placing a GMO for food use or a GMO-containing food on the EU market, or his representative, must be established in the EU. The same applies to manufacturers, processors, or sellers responsible for materials and articles intended to come in contact with food but which are not yet in contact with food.

Thus, unless the EU and the UK agree on UK-specific derogations within the transition period, pure UK establishments do not fulfill these requirements for food business operators.

FOOD PRODUCTION, FOOD OF ANIMAL ORIGIN, FOOD HYGIENE

Besides, as the EU food law sets rules for the production of food in the EU and third countries and also puts specific controls on the entry of food into the EU, the importation of food of animal origin from the UK into the EU will be prohibited unless the UK is “listed” by the European Commission for public and animal health purposes and as a third country having an approved residue control plan, and the imported food satisfies all food and hygiene requirements. Also, the establishment in the UK from which the food is dispatched, obtained, or prepared must be “listed” by the European Commission for public health purposes.

In terms of food hygiene rules, food manufacturers should be aware that the possibility for national measures to achieve EU food hygiene standards (“flexibility provisions”) will no longer apply to the UK upon termination of the transition period.

Thus, food business operators importing products of animal origin have to ensure that import takes place only if the above-mentioned conditions are respected. As of the withdrawal date, these food production and hygiene requirements are controlled upon entry in the EU by applying mandatory border checks.

EU RULES ON QUALITY SCHEMES

Further, as from the withdrawal date, EU legislation protecting the registered protected designation of origin, protected geographical indications, geographical indications, and traditional speciality guaranteed will no longer have effect in the United Kingdom. Any right granted in accordance with EU law to protect such quality schemes guaranteed on or after the withdrawal date will apply only in the EU Member States. As a consequence of the UK’s withdrawal from the EU, such quality schemes registered and protected under EU law might not be protected in the UK without interruption.

As such, right holders should assess whether to seek alternative means of securing protection of the relevant geographical names in the UK, in accordance with UK law.

CONCLUSION

The future status of the United Kingdom and its relationship with the European Union after the end of the transition period on 31 December 2020 will have major consequences on the regulatory hurdles food manufacturers must overcome in the future. And as Michel Barnier, the EU’s chief negotiator for a new partnership with the UK, announced in his speech on 27 January 2020 in Belfast, “A new clock is ticking. Eleven months is extremely short” to negotiate the future partnership between the EU and the UK. It remains to be seen whether the two parties successfully agree on a regulated withdrawal.

UK companies doing businesses in the European Union should be aware that they must comply with the requirements of the EU to ensure that their products are negotiable on the EU market.