Food Labelling and Brexit

United Kingdom

The current food labelling regime is a patchwork of EU Regulations, UK legislation and case law from both the EU and UK Courts. In light of this it is worth considering what might happen to this complicated area of law if the UK was to leave the European Union.

Some of the most fundamental parts of food labelling legislation are EU Regulations. For example Regulation 1169/2011 provides a general framework and governs matters such as ingredients lists and allergens, Regulation 1924/2006 controls the use of health and nutrition claims and Regulation 510/2006 regulates the use of Protected Geographical Indicators (PGIs) and Protected Designation of Origins (PDOs) such as Parma ham or Champagne. There are also specific EU Regulations which deal with certain categories of food, for example organic or fresh meat. In addition to EU law there is also UK legislation, for example the Food Safety Act 1990 which requires that food packaging must not be misleading. Our interpretation of the entire food labelling regime is informed by UK and EU case law, for example the Raspberry Vanilla case (C – 195/14) informs how we interpret “misleading” for the purposes of pictures on packaging.

In an effort to ensure consistency across the Member States the trend in recent years has been for the EU to legislate via Regulations (rather than Directives) for food labelling. The distinction between Regulations and Directives has suddenly become significant. Directives are not directly effective and simply instruct member states to create legislation. In contrast Regulations are directly effective in all Member States, including (at the moment) the UK. So in principle there is no need for a Member State to legislate. However, for the purposes of food labelling, the UK has chosen to transpose many food labelling Regulations directly into UK law in the form of Statutory Instruments. The most important of these are the Nutrition and Health Claims Regulations 2007/2080 and the Food Information Regulations 2014/1855. Interestingly there is no Statutory Instrument which transposes the PGI/PDO regime into UK law.

As with most other areas of law, there is no immediate change to the food labelling regime as a result of the referendum result. The EU Regulations and UK law will continue until the UK leaves the EU. However, it is interesting to ponder what will happen if (and when) the UK does leave the EU.

The effect of transposing most of the Regulations into Statutory Instruments is that there will be little immediate impact on food labelling regardless which model the UK chooses to adopt. While it is possible that the underlying Regulations will fall away and no longer be binding in the UK, the Statutory Instruments will continue and will be binding in the normal way. What will change is that the UK Parliament will (re)gain the ability to modify these Statutory Instruments.

Recently we have seen considerable consumer support for anti-obesity measures such as the proposed Sugar in Food and Drinks (Targets, Labelling and Advertising) Bill which would have required manufacturers to show sugar content in teaspoons on packaging. If the UK Parliament (re)gains the ability to modify these labelling requirements they may revisit this Bill or consider other anti-obesity measures.

One area where there is potential for a significant change immediately upon leaving the EU is the PGI/PDO regime. There is no Statutory Instrument for PGI/PDO regime. Therefore, this Regulation could fall away and, unless the UK chooses to create an equivalent regime, it will become possible to label food/drink English Champagne and Parma ham from Gloucester.

Whether the Regulations fall away will depend on what model the UK chooses to adopt. One of the potential options would be to become a European Free Trade Association (EFTA) state. EFTA states have an agreement (the European Economic Area (EEA) agreement) with the EU which provides access to the single market. Under the EEA agreement, the EEA Joint Committee reviews EU legislation on certain topics on a rolling basis and incorporates this into the EEA agreement as appropriate. Food labelling legislation is included in this process, but the PGI/PDO regime is not. On 24 October 2014 Regulation 1169/2011 which provides the general frame work for food labelling and Regulation 1924/2006 on health and nutrition claims were incorporated into the EEA agreement. Consequently if the UK chooses to become an EFTA state then these Regulations will continue to be binding on the UK and Parliament will not (re)gain sovereignty over much of the food labelling regime.

What is most likely to change if the UK becomes an EFTA state is enforcement. At the moment any company or government body can sue through the English courts to enforce EU law. However, the Court of Justice of the EU (CJEU) is the final arbiter on the meaning of EU law. Dissatisfied parties can appeal to the CJEU on matters of EU law. In addition the English courts routinely refer questions of interpretation to the CJEU and CJEU decisions are binding on the English courts. If one assumes for argument’s sake that if the UK leaves the EU, the CJEU will have no place in the English legal system, then without a right of appeal to the CJEU, CJEU decisions will presumably no longer be binding on the English courts and CJEU decisions will be treated in a similar manner to other foreign cases, in other words the courts will consider them persuasive in their discretion, but not binding.

Interestingly, the EFTA states have their own court, the EFTA court. The English Courts would be able to refer questions to the EFTA court in much the same way as they refer questions to the CJEU. The EFTA Surveillance Authority can bring direct actions against EFTA states. However, the EFTA court is different from the CJEU. Its rulings are advisory only and not legally binding.

One outcome of Brexit could be that the English courts could interpret EU law in a different way to the CJEU. Over time English case law could start to diverge from EU case law. Therefore if the UK joins EFTA we could end up with the same Regulations but applied in a subtly different way.