Consultation outcome

Summary of responses and government response

Updated 5 April 2019

1. Introduction

Following the UK referendum to leave the EU the UK government has been working hard to secure a deal with the EU. Alongside this, government departments have been preparing an extensive programme of work that will ensure the UK can continue to operate in a range of scenarios.

Defra is working with other government departments, devolved administrations, partners, and businesses, so that vital areas such as food, farming and the environment are at the heart of EU Exit planning, and we all understand the challenges and opportunities that government and industry are facing in the coming months to ensure a smooth transition.

Defra held a consultation to request comments/opinions from industry, stakeholders and consumers about amendments to food legislation which are required to ensure that a range of provisions can continue to operate after the UK had left the EU. The amendments would apply to certain England-only regulations because food policy is a devolved matter (power is dispersed) and Scotland, Wales and Northern Ireland have their own similar regulations in place and are considering similar changes.

The legislation required to make these changes is called a statutory instrument (SI). Several SIs are being used to make amendments to food legislation, which are required to ensure that compositional standards can continue to operate if the UK has left the EU without a deal or in the absence of a partnership arrangement and common approach to food legislation at the end of an implementation period.

Over the course of developing each policy option, the government met frequently with industry over the last two years. Open discussions enabled key stakeholders to feedback their views that we could take into consideration when drafting the policy options.

The consultation was carried out through the online survey Citizen Space, and ran for four weeks from 16 October to 13 November 2018. This was a shorter duration than is normal due to the time available before EU Exit and additional actions needed to lay the relevant SI(s).

Key UK stakeholders/trade associations were notified of the consultation launch by email.

In total we received 25 responses:

• 23 responses on the online survey platform Citizen Space
• 2 responses via email

Break down of how respondents identified:

Type	Total
Individual	8
Local authority	3
Trade association	2
Food or farming business	8
Other business	0
Other type of organisation	3
Not Answered	1

2. The consultation questions

The consultation sought opinions and comments on amendments that would need to be made to the following regulations:

• The Food (Lot Marking) Regulations 1996
• The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007
• The Spreadable Fats (Marketing Standards) and Milk and Milk Products (Protection of Designations) (England) Regulations 2008
• The Food Information Regulations 2014
• The Honey (England) Regulations 2015
• The Country of Origin of Certain Meats (England) Regulations 2015
• The Caseins and Caseinates (England) Regulations 2017

Most of the proposed amendments are minor technical fixes, e.g. concerning the correction of references to the EU or Member States, however more substantial policy options needed to be considered for honey and natural mineral waters legislation.

2.1 The Honey (England) Regulations 2015

The regulations require that honey packaging must show the country of origin of the honey. Alternatively where the honey is blended from more than one country of origin it can currently be labelled as ‘EU’, ‘non-EU’ or ‘EU and non-EU’ (or else list the individual countries of origin).

Once the UK leaves the EU using such EU-focused terminology will not be appropriate in our legislation.

2.2 The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007

The regulations implement a range of EU legislation relating to bottled water; these regulations implement Directive 2009/54 pertaining to NMWs and stipulate that NMW must go through a recognition process to prove that they have the necessary composition and characteristics to be sold and marketed as natural mineral waters in all EU Member States.

If the legislation is not amended and we leave the EU without a deal:

• the UK government would lose control on what can be or otherwise traded as NMW in England. The functioning of the internal market could be affected as the current legislation will not function correctly. Therefore Welsh, Scottish, Northern Irish NMWs would be prevented from trading in England as they are only recognised in England by virtue of their relationship with the EU directive which would no longer be legal.

• we would not be able to make our own decisions on the recognition of both existing and future NMWs recognised by the EU.

Therefore the regulations must be changed and the text amended.

3. Summary of responses

Note here that all respondents had the opportunity to comment on every policy option being considered whether or not this was their area of expertise.

It is important to keep in mind that public consultations are not necessarily representative of the wider population. Since anyone can submit their views, individuals and organisations who are more able and willing to respond are more likely to participate.

Because of this likelihood for self-selection, the emphasis of this analysis has not been to count how many respondents held a particular view. Instead it has been largely qualitative - with the aim being to understand the range of key issues raised by respondents, and the reasons for holding their particular views. This includes potential areas of agreement and disagreement between different groups of respondents.

3.1 Honey – origin labelling

There was a mixed range of responses in terms of honey origin labelling with the most preferred option being policy option 1. This involves requiring blended honey that is from more than one country displaying origin labelling as “a blend of honey from more than one country” or similar wording. However it must be noted there was a mix of preferred policy options.

Option 0 – no change

Of those who agreed with policy option 0, respondents identified as either a trade association, individual or local authority.

A comment was made suggesting that EU/non EU differentiation enhances origin information and subsequently enables better informed decision making by consumers. However a honey trade association, who represent the majority of UK honey importers and packers, do not see this as a practical option in a ‘no deal’ scenario as we will have no ties to the EU.

A widely representative trade association were among those who agreed with this option. Their choice was based on considerations around which option would result in the least amount of change and/or associated costs. They argued that policy option 0 would mean only a small amount of UK honey not labelled with a single country of origin will need to be relabelled. They consider it sufficient for honey blends from different EU countries to be labelled as EU and non-EU to avoid separate labels for the UK market and exports to Europe.

Option 1 – ‘a blend of honey from more than one country’ or similar wording

Of those who agreed with policy option 1, respondents identified as either a trade association, individual, local authority, government chemist or food/farming business.

This option was described by some as the ‘most sensible’ and that it provides consumers with sufficient origin information which is important as a large honey trade association pointed out that most honey is blended. Despite frequent comments acknowledging Option 1 as the most sensible solution a comment was made highlighting concerns regarding traceability of import checks, potential fraudulent claims made under ‘a blend of’ and accessibility to residue monitoring plans. The respondent, who identified as part of a local authority, stipulated that establishing whether each country that contributed honey to a blend had a residue monitoring plan would be difficult if there was no requirement for all countries to be listed on the label.

The Honey Association, who represent the majority of UK honey importers and packers, believe the most viable option is to use “a blend of honey from more than one country” for honey from more than one country and honey of single origin must state the individual country despite associated costs. They also agreed with comments and potential impacts explained in the consultation text which noted that one of the main justifications behind this option is to avoid having to frequently change labels and therefore reduce costs.

Option 2 – ‘UK’/’non-UK’

Of the few respondents who selected option 2 as their preferred policy option all identified as individuals.

A comment was made by a respondent who felt it was important for consumers to clearly distinguish between UK and non-UK honey, especially those who want to support domestic producers and/or reduce their food miles/carbon footprint. The respondent also felt that associated costs of labelling changes would not be too disruptive to industry if they were provided with notice and a transition period aligned with planned industry system changes in a co-ordinated fashion for all labelling changes.

This option was also considered ‘irrelevant’ by some respondents. A large honey trade association regarded option 2 as not relevant as UK honey is already labelled as UK origin in accordance with labelling rules.

Disagreed with all options/don’t know or no preference

Of the small minority of respondents who disagreed entirely with the proposed opinions, the consensus was that consumers should be provided with more detailed country of origin information than what was outlined by the three policy options.

There were specific suggestions for what kind of additional information should mandatory on the label. This included specifying each country if more than one. One individual felt that to reduce the risk of ambiguity or manipulation, a minimum of the named source (UK/EU/Country) in a blend should be given as a percentage on the label as quality preferences for different geographical honey origins might exist.

It must be noted here that current origin rules for honey already stipulate that country or countries of origin must be labelled except in the case where honey is a blend form more than one member state of third country.

Another individual commented that referencing the EU would provide more, albeit limited, origin information than the options proposed. It might be noted here that such information is likely to increase the burden for industry as honey blends will change frequently depending on cost, seasonality and general availability within the market.

Quite a number of respondents didn’t make a choice and selected don’t know/don’t have enough information. Only one commented that this was due to it not being relevant to their organisation however it is reasonable to assume that this was also true for others and also for NMW decision choice. The structure of the questionnaire meant that those interested in NMW would also answer for honey and those interested in honey would have had to select and option for NMW.

3.2 Natural mineral water (NMW) recognition

The majority of respondents chose the policy options that were in line with the government’s stance of unilateral continuity for the exit of the United Kingdom from the EU. Within this, there was a range of preferred policy options however option 0 was selected as most preferred option by the highest number of respondents.

Option 0 – rolling over recognition of EU NMWs for 6 months after which a decision for continuation or a notice period for removal will be decided by Secretary of State.

This was the preferred policy option overall. Of respondents who chose option 0 as preferred policy option some thought it was a sensible option to maintain import stability and business continuity. They also viewed it as the only option that had a minimum business impact whilst allowing government to make changes if necessary.

The majority of those who chose this option which did not give reasons to explain their choice.

Option 0 was viewed as practical as it would guarantee supply in the short term and reduce negative impacts. There were however quite significant concerns regarding the proposed 6 month transition period. It was viewed by some as being too short a time to allow for appropriate changes to happen.

Despite agreeing with this option, a respondent who identified as a food/farming business were apprehensive about potential increases in import overheads, complexities for regulation of NMW recognition and transportation delays.

A widely representative trade association also agreed with policy option 0 as they viewed it as the least disruptive and burdensome of the options. Their main approach to answering the consultation appeared to be avoiding changes to current practices as they stressed the importance for minimum business impact. They also felt that continuation of EU recognition of UK NMW was important for UK industry stability.

Option 1 – removing NMW recognition

A few respondents chose this as their preferred policy option. One of the main reasons mentioned was concern by industry that they will no longer be operating on a level playing field, given the EU’s position to remove NMW recognition in a ‘no deal’ scenario which puts UK producers at a competitive disadvantage. However a much higher proportion of respondents felt this option was not viable as it would be detrimental for business and market continuity.

One respondent was of the opinion that consumers pay less attention to whether water is NMW or not and that it would not impact sales significantly.

A key industry stakeholder expressed support for option 1 as they were concerned industry will no longer be operating on a level playing field should the EU continue with their decision to remove recognition of UK NMWs in a ‘no deal’ scenario. The producer felt they cannot support any option that results in UK producers being put at a competitive disadvantage by being prevented from exporting their NMW to the EU while EU producers can still export to the UK. A further specific concern was raised about commercial viability for smaller NMW producers with a potential risk to jobs.

There were a substantial amount of comments made that heavily criticised option 1 whilst one respondent pointed out a positive that this option is more in line with World Trade Organisation (WTO) rules.

Numerous comments were observed in relation to the proposed transition period of 6 months (proposed under Option 0). A food/farming business stated concern this was not long enough to achieve UK agreement on the future of NMW legislation as there isn’t aligned across Devolved Administrations. They also suggested this option might lead to unnecessary uncertainty as imported bottled water already meets trusted high (EU) standards. They felt a longer period of continued recognition was more likely to ensure business and consumer confidence and market stability.

This was viewed to be a probable negative impact on trade as differences between UK and EU Member States’ requirements could also result in delays and market disruption as well as trade issues with UK NMWs within internal borders.

Practical issues were among some of the concerns. This involved NMW stocks that would exist in UK warehouses/shops after Exit day. They would be non-compliant, jeopardising the legal position of NMWs bought by consumers and not yet consumed.

A large industry stakeholder who identified as a food/farming business specifically noted that of the majority of mineral water that is imported into the UK, a large proportion (30%) originates from the EU. Therefore the volume of applications for recognition might impact the speed at which they can be processed and NMWs imported. In the event of no transition period being agreed there might be a supply shortfall and consequential economic (price rises), reputational and border problems impacting UK producers and consumers. The same food/farming business also speculated a potential health issue that might arise in the case of option 1, namely consumers switching to “unhealthier” options.

There were some concerns that this option might cause confusion for consumers, potentially in terms of safety, as what was legal to be sold one day (before Exit) would not be on the next (after Exit).

Trade through EU Member States from 3rd countries would also be impacted.

EU reciprocation is desired and reconsideration after a 5 year expiry is a viable option if UK NMW recognition is not reciprocated.

Option 2 – Rolling over NMW recognition for 5 years

Option 2 was found to be the second most preferred option. Generally those opting for option 2 approached analysis from a business perspective while looking for the best option to ensure market continuity. Responses mainly stated their reason for choosing this option was because they felt the transition period of 6 months outlined in option 0 might be too short and could result in uncertainty, impacting business and consumer confidence.

The majority of respondents who chose option 2 believed it would be able to deliver the most certainty for businesses and a longer transition period if changes are needed. This opinion was largely based on an assumption that the five year grace period offering UK recognition of EU NMWs would be mirrored by continued EU recognition of UK NMWs.

A key NMW producer/supplier felt that due to the uncertainties associated with Option 0 and Option 1, Option 2 will continue to ensure UK consumers will have access to a wider range of valued, safe NMWs and UK business continuity.

Another major NMW producer/supplier reported that they see no necessity to immediately reassess NMWs previously and currently recognised by EU member states and a 5 year period to consider review is sufficient.

No preference

A key trade association with a NMW interest found no consensus among their membership on the NMW issues. They stated members thought that option 0 would maintain the status quo, others think the operation of option 1 is unclear and it would considerably disrupt the UK market and both 0 and 1 have practical difficulties around the average 2 year shelf life of NMW products. Some also note that option 2 allows NMW producers recognised by other EU member states plenty of time for application for recognition in the UK and maintains stability of the current position.

They also stated recognition of the importance of policy alignment for all the devolved administrations.

3.3 Additional changes

It should be noted here that no additional changes for EU Exit are needed but we gave respondents the opportunity to comment here so they felt they had the full opportunity to communicate their views.

There was the occasional comment regarding other food regulations not within scope of the consultation. A respondent who identified as a food or farming business noted that the Jam and Similar Products Regulations were not mentioned and questioned why no changes were needed. The Food Information Regulations (FIR) were mentioned as being imperative to address given the scope of food products affected. Clear guidance was generally requested.

Other comments focussed around more generally reducing the impacts of changes on businesses and consumers. Requests for clear coherent amendments/guidance so it is easy for industry and consumers to understand changes made.

Also mentioned was the concern that food safety levels of risk might be sensitive to any dramatic changes. There was concern expressed about the general fulfilment of additional risk assessment and management the European Food Safety Authority (EFSA) is currently responsible for once we leave. Thrown into question was the lack of resources and expertise for replacement of EU systems that share information about food safety and food crime.

A key trade association with a NMW interest commented that their response was based on the assumption that the changes were intended solely to make the various regulations noted operable on exit.

A widely representative trade association encouraged continuation of existing in-depth co-ordination of the government departments which are looking at coordinating the minimum numbers of label changes that may be required. They supported the need to consider the practical elements of a labelling change for domestic products and how these will be viewed if exported to EU and non-EU countries.

4. Government response

After careful consideration of consultation responses, potential effects each option might have on UK consumers and businesses and the government position of unilateral continuity, the following amendments will be proposed to be made into legislation. This will ensure the regulations remain operable on day one of EU Exit should we leave the EU without a deal.

Small technical amendments will be made to:

• The Food (Lot Marking) Regulations 1996
• The Spreadable Fats (Marketing Standards) and Milk and Milk Products (Protection of Designations) (England) Regulations 2008
• The Food Information Regulations 2014
• The Country of Origin of Certain Meats (England) Regulations 2015
• The Caseins and Caseinates (England) Regulations 2017

4.1 The Natural Mineral Water, Spring Water and Bottled Drinking Water (England) Regulations 2007

The proposed policy to be taken forward is option 0. These amendments will firstly ensure the functioning of the UK internal market and that Natural Mineral Water (“NMW”) can continue to be traded within the UK.

Secondly by continuing to recognise NMW recognitions granted by EU 27 Member States in the UK after EU Exit we will ensure continuity in the UK marketplace and avoid destabilising supply of NMWs in the UK. Consumers will remain protected as such waters already comply with UK rules. The Secretary of State (SoS) will have the power to withdraw such recognitions – following a period of six months after EU Exit – at any time on giving 6 months’ notice.

The decision of the SoS whether or not to remove recognition would be made having fully considered discussions with the EU and decisions made by the EU in addition to all other considerations at the time and always after a given period of notice. A decision to withdraw recognitions would also require discussion with Scotland, Wales and Northern Ireland

4.2 The Honey (England) Regulations 2015

The proposed policy option to be taken forward is option 1 to require the option of country of origin declaration of blended honey from more than one country to be labelled as ‘a blend of honey from more than one country’ or similar wording.

We are looking to provide transitional arrangements for country of origin labelling changes for 21 months which would enable businesses to co-ordinate any labelling changes that would need to be made to comply with UK law after the UK leaves the EU. These transitional provisions will allow current wording provided for in the Honey Regulations 2015 for blended honey to be used provided they remain true and accurate.

5. Annex: List of organisations who responded

This list does not include individuals or those who asked to remain anonymous.

We received responses from:

• Barry’s Big Buns
• Bristol City Council
• British Honey Importers and Packers Association
• British Soft Drinks Association
• Britvic Soft Drinks
• Coeliac UK
• Government Chemist
• Green Ambition Ltd
• Local Authority
• Nestle Waters UK
• Tata Global Beverages
• Envireau Water Consultants