Food and drink products imported into Great Britain from the EU will be subject to new labelling requirements in 2024, when the 'grace period' that kept in place the pre-Brexit rules comes to an end. EU exporters and British importers need to have arrangements in place to deal with these changes, or risk losing market access in the New Year.
British food and drink exporters had to deal with the equivalent changes at the end of the Brexit transition period, as the EU extended no such grace period: our briefing at the time set out how the rules were changing for food and drinks products exported from Great Britain to the EU. Now it's the turn of products going in the other direction.
What labelling requirements are changing?
The relevant labelling rules come from the EU's Regulation 1169/2011/EC on the provision of Food Information to Consumers (the "FIC"). In Great Britain ("GB"), they come specifically from the version of the Regulation that was retained and amended for use in the laws of Scotland and of England & Wales at the point of Brexit (the "UK FIC"). The EU rules continue to apply for products sold in Northern Ireland.
The UK FIC requires that the package or label of pre-packaged food – a term that includes drink – must contain certain mandatory particulars, including the name (or business name) and address of the Food Business Operator ("FBO") responsible for the food information.
Who must be named as the FBO on food & drink products sold in Great Britain?
The post-Brexit grace period meant that products sold in GB could still have the name and address of an EU-based FBO on them. However, that will all change as of 2024.
The FBO under the UK FIC is "the operator under whose name or business name the food is marketed or, if the operator is not established in the British Islands, the importer into the British Islands".
The "British Islands" for these purposes are the United Kingdom (i.e. GB and Northern Ireland) plus the Channel Islands and the Isle of Man. Accordingly, to comply with this requirement (the "GB FBO Requirement"), the package or label of food sold in GB will have to include the name and address of an FBO established in one of those places.
The concept of establishment is taken from the original EU FIC. However, it is not defined in the FIC and has never received any court attention in the food context (and very limited attention in any other context). It's therefore most unfortunate that the UK FIC just retained the same concept without adding anything to help businesses understand what would and would not count as establishment.
We can nevertheless say that it seems unlikely that an EU business could qualify just by setting up a 'brass plate' subsidiary company in the British Islands, with no 'on the ground' personnel or commercial activities. To be established, a business will probably need to have some physical presence (potentially including the presence of personnel) and perform some meaningful form of commercial activity in the British Islands.
If the producer of the food does not meet that test of establishment, the product will instead need to bear the name and address of the person who imported the product into GB. Not only that, but the importer will be responsible for the product's FIC compliance more generally – i.e. not only the GB FBO Requirement, but also the labelling requirements around ingredients, quantities, 'use by' dates, country of origin and more.
The risks of non-compliance
The FIC rules are enforced in Scotland under the Food Information (Scotland) Regulations 2014, with each council responsible for enforcement in its area. Food that is not FIC-compliant can be seized and removed, and potentially destroyed, all at the owner's expense.
It is also an offence for an FBO to fail to comply with various FIC requirements, including the GB FBO Requirement, punishable by a fine not exceeding Level 5 on the standard scale (currently £5k). If a body corporate commits the offence with the consent or connivance, or because of any neglect of, a director, manager, secretary or other similar officer, that person will also be guilty and liable to the same fine. While prosecution would not be the first option in practice, as councils can be expected to work with the FBO to ensure compliance in the first instance, the possibility illustrates the seriousness of the obligations importers will be taking on if an EU producer is not established in the British Islands.
In addition, an FBO that is "in charge" of food that it thinks contravenes the FIC is obliged to report that to Food Standards Scotland, and it is again an offence to fail to do so.
The rest of the UK takes a less draconian approach to enforcement, with offences limited to a narrower range of FIC breaches largely relating to allergen information. Other FIC requirements, including the GB FBO Requirement, are initially enforced by an 'improvement notice' being served under the Food Safety Act. That notice specifies the measures required to secure compliance (which in theory might include an obligation to have non-compliant products withdrawn from the market, the seizure powers noted above not applying in England). An offence only arises if the relevant person fails to comply with the notice, and in that case punishment can include a prison sentence as well as a fine.
It's therefore very important for anyone dealing with food imported into GB from the EU to understand who the FBO responsible for the information is, and to ensure that the right name and address appears on the product. Importers in particular should be mindful of the seriousness of the FBO role, and where they have that responsibility they will want to have comfort (potentially backed up by indemnities and other contractual protections) that all of the information provided by the EU producer is accurate.
What about products already in the supply chain?
The application of the GB FBO Requirement will be subject to a further grace period for products "placed on the market" before a certain date.
The Scottish regulations provide that a person will not be in breach of the GB FBO Requirement if the product was placed on the market before 31 December 2023 (i.e. by 30 December 2023) and is otherwise compliant with the UK FIC (which would include bearing the name and address of a producer established in the EU). The equivalent provisions for England and Wales are framed differently but have the same effect for products placed on the market before 1 January 2024. Accordingly, products that were placed on the market before the relevant date can continue to be marketed in GB until stocks are exhausted, even if they bear the name and address of a producer that is only established in the EU.
Whether a product has been "placed on the market" is defined in EU law (and so in the UK FIC) as:
"the holding of food or feed for the purpose of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves".
Food will therefore have been placed on the market even if it is only being held for the purposes of sale. Whether it is being held for that purpose or another pursuer will likely depend on the state of the product – for example, a finished food product that is simply held in a warehouse pending onward distribution is likely to be covered, but probably not a product that still needs work done to it before it could be sold into the supply chain or to a consumer.
While the concept of "placed on the market" is not quite as vague as the concept of "establishment", businesses should seek advice before marketing a product that does not comply with the GB FBO Requirement, unless they are sure it was placed on the market before the date set out in the applicable legislation.
Conclusion
Trade in food and drink is a key part of the UK economy, with many food and drink businesses reliant on imports. Recent figures from the Food and Drink Federation indicate that £30.1 billion of food and drink was imported into the UK in the first half of 2023. The EU accounted for around 70% of these imports, an increase of around 11% from 2022. In order to keep these imports flowing smoothly, both EU producers and GB importers must ensure they remain complaint with the regulatory landscape.
If you require advice or assistance in relation to any issues arising from these impending changes, please get in touch with Charles Livingstone or your usual Brodies contact.
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