Dominic Watkins and Georgia Taylor, DWF Law LLP
Country of origin requirements
Country of origin (COO) labelling requirements continue to apply in Great Britain (GB) by virtue of Regulation (EU) No 1169/2011 on the provision of food information to consumers, as it has been assimilated into national law (GB FIC). The EU Regulation (EU) No 1169/2011 applies directly in Northern Ireland (NI) by virtue of the NI Protocol and Windsor Framework. As with EU Member States, it is mandatory for certain products to indicate the COO on the labelling (i.e. certain fresh, chilled or frozen meat and meat products, honey, fruit and vegetables, fish and olive oil).
However, since the UK left the EU there have been some changes to the way COO labelling must be indicated. The most obvious change was brought about by the Food and Drink (Miscellaneous Amendments Relating to Food and Wine Composition, Information and Labelling) Regulations 2021/632 which amended Regulation (EU) 2018/775, as it had been retained in the UK at the end of the transitional period, by replacing references to ‘EU’, ‘non-EU’ or ‘EU and non-EU’ with ‘UK’, ‘non-UK’ or ’UK and non-UK, when indicating the COO of the primary ingredient.
Other changes include those to products for which COO is mandatory and which take into account the nuances of NI’s position in the UK post-Brexit. For example, ‘United Kingdom’ (or ‘UK’) is the COO indication for beef and veal from both GB and NI, but for the NI and EU markets, ‘UK (NI)’ must be used to refer to products of NI origin.
Vegan / plant-based food
There is currently no UK legal definition of ‘vegan’. However, the purposes of ensuring that the term does not mislead under GB FIC, the Food Safety Act 1990 and consumer protection legislation, it is generally understood as meaning that a food does not contain any ingredients derived from animals (including eggs, honey, milk etc.) and has not been manufactured with the use of any animals by-products (including equipment).
The UK’s Food Standards Agency (FSA) recently carried out a survey about the use of the term ‘vegan’ being used as a proxy for allergen labelling (i.e. consumers relying on the term ‘vegan’ to avoid animal-derived ingredient they were or might be sensitive or allergic to, such as eggs and milk). Their findings concluded that there was widespread confusion around what the term ‘vegan’ and other terms such as ‘plant-based’ meant to those consumers with food hypersensitivities, resulting in the FSA publishing a warning against consumers relying on ‘vegan’ to mean free from animal-derived allergens, because of the risk of cross-contamination.
In relation to plant based alternatives to meat or dairy, the UK continues to be relatively permissive. However recently there was talk within the enforcement community of becoming more restrictive, however this is yet to come to fruition.
Fortification of foods
Regulation (EC) No 1925/2006 on the addition of vitamins and minerals and of certain other substances to foods has been assimilated into national law. However, it only applies in GB, with NI following the EU Regulation (EC) No 1925/2006 directly.
Since the end of the transitional period (when the UK effectively took a ‘snapshot’ of EU law and converted it into Retained EU Law) the UK has not made any amendments to this Regulation, except to make it operable in the UK (i.e. remove/replace references to EU/EU committees). However, the EU Regulation has been amended several times; it has expanded the list of prohibited substances (aloe-emodin, emodin, danthron and aloe extracts containing hydroxyanthracene derivatives); added to the list of restricted substances (monacolins from red yeast rice and green tea extracts containing (-)- epigallocatechin-3-gallate) and included nicotinamide riboside chloride as a permitted form of niacin. Because these changes apply in NI but not in GB, there is intra-UK divergence, meaning that a fortified product containing, say, one of the newly prohibited substance could be permitted in GB but prohibited in NI. Fortunately, the newly prohibited and restricted substances in the EU/NI are not common in the UK, but as time goes by and EU and GB Regulations evolve, increased divergence is inevitable, posing new challenges for food businesses wanting to market products in the EU/NI and GB.
Cannabis as an ingredient in food or supplements
Cannabis is a class B drug in the UK under the Misuse of Drugs Act 1971 and possession and supply are prohibited without specific Home Office approval. Cannabidiol (CBD), however, is one of more than a hundred chemicals found naturally in the hemp plant (cannabis sativa) and, as an isolated substance in its pure form, is not a controlled drug under the Act, because it does not contain the psychoactive cannabinoid, delta 9-Tetrahydrocannabinol (∆9-THC).
The FSA classified foods containing CBD, including food supplements, as novel foods back in 2019 and included in its classification naturally-derived CBD and synthetic CBD. Despite being classified as novel, CBD has taken an unusual regulatory journey in that, unlike other novel foods which are prohibited unless they are specifically authorised following a safety assessment, CBD was permitted to remain on the market until 31 March 2021 provided it met certain requirements (safe, uncontaminated with other cannabinoids such as THC, accurately labelled, place on the market before 13 February 2020).
Oddly, the rules did not apply to new products placed on the market after 13 February 2020, or to products placed on the EU market (at this stage, the UK was still within the Brexit transition period). If novel food applications for those CBD products were not submitted by the 31 March 2021 deadline they were to be removed, whilst for CBD products subject to novel food application could remain on the market subject to the assessment.
Over 12,000 CBD products linked to novel food applications are listed on the FSA’s Register and, whilst there have been few updates since its publication, the first safety assessment for a synthetic CBD was published only at the end of April 2024. Whilst this does not mean the product (or others) will be authorised anytime soon, it shows that progress is moving in the right direction.
