Consultation outcome

Summary of responses and government response

Updated 19 June 2020

Consultation summary

The consultation set out plans to introduce domestic legislation that ensures we can enforce new rules on labelling the country of origin of primary ingredients of food.

Article 26(3) of the (EU) 1169/2011 Regulation of Food Information to Consumers details provisions that where the country of origin or the place of provenance of a food is given and where it is not the same as that of its primary ingredient, the origin or place of provenance of the primary ingredient must also be given or indicated as being different to that of the food.

The rules for the application were laid down in the EU Implementing Regulation 2018/775 (IR 2018/775) published on 28 May 2018 and apply across the EU and in the UK from 1 April 2020.

The consultation was concerned with the proposed domestic legislation that will provide for penalties and enforcement of the IR 2018/775 in England.

The consultation described our proposed approach to make an amendment to the Food Information Regulations 2014 which brings enforcement of the IR 2018/775 into the existing Food Information to Consumers enforcement regime, matching provisions already in place for most non-safety related labelling offences.

The key questions asked in the consultation were:

Q1. Do you agree that the new rules, already in place, for declaring the origin of primary ingredients should be enforced in the same way as other non-safety elements of the existing Food Information to Consumers enforcement regime?

Q2. Do you agree that the costs of this approach are in line with those outlined in the draft Regulatory Triage Assessment (Annex 1)?

Q3. Do you agree that the enforcement approach, given that the IR 2018/775 itself is directly applicable in the UK, is the least burdensome approach necessary to properly implement the IR 2018/775?

Participants were invited to provide comments for questions they had answered where they did not agree.

For the purposes of this document the questions have been numbered differently to the consultation and will be referenced as Q1 – 3.

1. Consultation response summary

The consultation was open between 21 February and 20 March 2020 and in total 30 responses were received. We received 25 responses via Citizenspace and 5 responses via email. They came from a wide variety of different respondents, ranging from those who identified as a food or farm businesses, organisations including local authorities, trade associations and individuals.

A breakdown of respondents is as follows:

• food or farming business (4)
• other type of business (1)
• organisations (including local authorities) (2)
• other type of organisation (including local authorities) (2)
• trade association (5)
• individuals (13)
• blank (3)

2. Summary of responses to consultation questions

Of the 30 responses received not all questions were answered on every occasion. Some participants chose to answer particular questions and opted to leave some answers blank. Where yes/no questions were left blank, some respondents did provide comments, and these are addressed in detail in the next section.

Overview of responses to the consultation questions:

Q1. 27 out of 30 responses answered yes, they did agree new rules should be enforced in the same way. (90% of respondents)

3 out of 30 responses answered No, they did not agree the new rules should be enforced in the same way. (10% of respondents)

Q2. 19 out of 30 responses answered yes, they did agree with the cost approach set out in the draft Regulatory Triage Assessment (RTA). (63% of respondents)

5 out of 30 responses answered No, they did not agree with the cost approach set out in the draft RTA. (17% of respondents)

6 out of 30 responses did not answer this question. (20% of respondents)

Q3. 24 out of 30 responses answered yes, they did agree the enforcement approach was the least burdensome. (80% of respondents)

3 out of 30 responses answered No, they did not agree the enforcement approach was the least burdensome. (10% of respondents)

3 out of 30 responses did not answer this question. (10% of respondents)

3. Detailed analysis of responses to consultation questions

Q1 - Do you agree that the new rules, already in place, for declaring the origin of primary ingredients should be enforced in the same way as other non-safety elements of the existing Food Information to Consumers enforcement regime?

A number of supporting comments were received from respondents.

Comments from those that agreed with the proposed enforcement highlighted the following:

• there is a desire for the proposed enforcement approach to be consistent with existing enforcement provisions for non-safety related labelling rules within the Food Information Regulations 2014
• it is practical to use the same enforcement regime for the new rules for declaring the origin of primary ingredients
• the legislation is particularly important to increase consumer awareness as to where their food comes from. There is a hope this legislation will help with confusion
• although the proposed enforcement regime is welcomed there is a desire for government to apply a pragmatic approach for implementation of these rules, with a realistic timeframe. There have been interpretational uncertainties of the new rules and EU guidance was published on 31 January 2020, leaving businesses little time to prepare

Comments from those that disagreed with the proposed enforcement highlighted the following:

• details of companies that are non-compliant should be published to enable consumers to make informed decisions when buying food products
• consumer detriment as a result of companies incorrectly labelling food products should be considered
• concerns that without additional resource the likelihood of enforcement may be negligible

Additional comments were provided however these were policy rather than enforcement related and were categorised as not in scope of this consultation. Comments that fall into this category are listed at the end of this document.

Q2 - Do you agree that the costs of this approach are in line with those outlined in the draft Regulatory Triage Assessment (Annex 1)?

No comments were provided from respondents that agreed with the costs detailed in the draft Regulatory Triage Assessment (RTA).

Of those that did not answer this question, no comments were provided.

Comments were provided from all five respondents that disagreed with the costings set out in the RTA. Due to limited knowledge on this subject two of the respondents were unable to provide reasons or supporting evidence. One of the comments focused more on familiarisation of legislation for businesses and the impact it would have for label changes, rather than the familiarisation costs relevant to enforcement.

Concerns were expressed from local authorities and were highlighted as follows:

• many authorities charge in the region of £60-£75 per hour for officer time for other chargeable work such as Primary Authority advice
• at this stage the number on non-compliances cannot be quantified. Different authorities have different enforcement policies and therefore a notice may not be issued in the first instance, leading to a further visit(s) and additional costs. The estimated cost of enforcement appears to be economical with most Local Authorities charging almost triple that declared in the annex, when including all overheads/associated costs

Q3 - Do you agree that the enforcement approach, given that the IR 2018/775 itself is directly applicable in the UK, is the least burdensome approach necessary to properly implement the IR 2018/775?

From those that agreed with the enforcement approach being the least burdensome, the following comments were expressed:

• the appropriate utilisation of improvement notices is the least burdensome enforcement approach for these new origin labelling rules. A consistent approach to the enforcement of general labelling rules within the Food Information Regulations (England) 2014 is important
• there is a desire to seek harmonisation of enforcement across the devolved administrations, however it was acknowledged that there are different legal systems in place
• proportionate enforcement of labelling legislation is achieved when enforcement officers take an appropriate escalation approach, which begins with informal advice, and then moves up to the issuing of ‘improvement notices’ only where deemed necessary
• a split view was expressed that for business the approach is least burdensome, however this is not the same view for enforcement if a business is not willing to comply following advice and/or the provision of a notice

The following comment was expressed from a respondent who did not agree with the enforcement approach being the least burdensome:

• allowing local authorities the option to prosecute as part of the options available will increase compliance

No comments were provided for those that did not answer this question.

4. Additional comments

We received additional comments which were policy specific and not related to enforcement of the new rules of primary ingredient. These responses fell outside the scope of this consultation. Comments included:

• origin declarations for all ingredients
• clarity on origin labelling for food supplements
• impacts for businesses implementing label changes
• resourcing

5. Evaluation

The consultation responses indicate there is a consensus that:

• the proposed enforcement approach was most favoured, 90% of respondents were in agreement
• the enforcement approach to implement the IR 2018/775 is considered the least burdensome, 80% of respondents were in agreement

It is important to note, although given the opportunity, no further suggestions were made for alternative approaches.

Respondents emphasised:

• the importance for enforcement of the new rules to be consistent with other enforcement provisions within the Food Information Regulations, for non-safety related labelling offences
• the use of the same enforcement regime is practical for businesses
• the importance of raising consumer awareness as to where their food comes from
• there is a desire for government to apply a pragmatic approach to enforcement to support implementation of the new rules
• the importance of having an escalation hierarchy for non-compliant labelling
• the option of criminal sanctions being available within the enforcement regimes, where previous steps have not resulted in a satisfactory outcome

It was highlighted by local authority respondents that the familiarisation costs within the Regulatory Triage Assessment were an inaccurate reflection of charges. It is recommended that costs should be in the region of £60 - £75 per hour for officer time. There is an action here for government to revise costs in line with advice provided by enforcement authorities.

Government response

The UK maintains high standards on the information that is provided on food labels so that consumers can have confidence in the food that they buy. The fundamental principle of food labelling rules is that information provided to the consumer must not mislead.

The UK has been in favour of food labelling being more transparent about the origin of food products. New regulations on labelling the origin of the primary ingredient align with what the UK has consistently supported and wants to see in place in the UK, and supports our commitment to strengthening consumer confidence.

Government ran a consultation from 21 February to 20 March 2020, seeking views on proposed domestic legislation that will provide enforcement measures for the new rules on labelling the origin of the primary ingredient of food.

After careful consideration of consultation responses, the government supports the proposed approach to align enforcement regimes of the new rules with existing enforcement provisions for non-safety related food rules. These changes will be made through amendment to ‘The Food Information Regulations 2014’ and will come into force in England on 18th June 2020.

During the consultation concerns were highlighted in relation to the costings detailed in the Regulatory Triage Assessment. Familiarisation costs have since been increased, following recommendations received from local authorities.