Food Composition Standards Review

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Closes 12 Oct 2021

Background

Prior to leaving the EU, under the Treaty of the Functioning of the European Union (TFEU) the UK was required to allow the import of certain lawfully produced food products from EU Member States, EEA States and in some instances Turkey even if they did not meet the compositional requirements of Scottish domestic legislation. The terms of the TFEU also allowed the UK to export to the EU and EEA on the same basis.  

These requirements are commonly referred to as mutual recognition provisions and are provided for within domestic food law in Scotland and in analogous food legislation across the UK.

However, now that the UK is no longer a member state of the EU, continued recognition of the relevant foodstuffs from EU Member States, the EEA and in some instances Turkey continues, this could be viewed as affording them favourable treatment and as such may breach WTO rules.

Legislation has already come into force in England to remove the mutual recognition provisions and a similar approach is being considered in Wales.

The relevant mutual recognition requirements of the TFEU continue to apply in Northern Ireland (NI), and therefore amending the mutual recognition provisions within domestic regulations in NI is not possible.

FSS has undertaken a review of the relevant domestic legislation in Scotland, which contain mutual recognition provisions for which FSS has policy responsibility. The purpose of the review was to identify the need for legislative amendment and consider how best to change the mutual recognition provisions to ensure compliance with the WTO rules while maintaining the current compositional standards provided for within our domestic legislation.

Continuing to allow lawfully produced food imports from EU member states, EEA states and Turkey that don’t meet national rules in the longer term could be viewed as giving these countries preferential market access and this is considered to present a significant risk of challenge from other WTO countries under Most Favoured Nation rules. Leaving these provisions in place is therefore not considered a viable option in Scotland.

Extending these recognition provisions to apply to all WTO countries would achieve compliance with the WTO rules, but this would present additional challenges. Although this would provide for increased trade and consumer choice, it could also invite imports of lower quality products into Scotland and in the wider GB context, this would include England and Wales.

This would also create unbalanced competition for Scottish producers, and in the case of flour, this could also have a negative impact on the nation’s health through reduced fortification. Furthermore, this option would be out of line with the Scottish Government’s policy to maintain our current food standards.

It could also put Scottish domestic industry at a disadvantage and for these reasons, we do not propose to pursue this as a viable option in Scotland and regulatory alignment with the EU.

Therefore, we propose to remove the recognition provisions from the relevant regulations which will result in imports from the EU/EEA and Turkey having to meet Scotland’s standards in future, in the same way as imports from other countries have to.

However, removal of the mutual recognition provisions from The Bread and Flour Regulations 1998 would result in manufacturers in Scotland losing access to unfortified flour. As some food businesses may make use of or produce unfortified flour for the export market we are proposing to remove the mutual recognition provisions but allow unfortified flour to be imported into Scotland only if it is for the production of food products in Scotland for the export market. In addition, we propose to further amend the current provisions to enable the production of unfortified flour in Scotland for export or for the production of food products in Scotland for the export market.

The Spreadable Fats, Milk and Milk Products (Scotland) Regulations 2008 contains provision for the fortification of margarine. This goes beyond EU standards and fortification is no longer a requirement in England. We have no known data on the volume of margarine being imported into Scotland or the UK as a whole but we believe this is small as many alternatives in the form of spreadable fats with a lower fat content than margarine are currently more commonly seen on the market in Scotland. However, margarine is still manufactured in Scotland and although fortification of margarine is not a regulatory requirement in England, it is considered this is still undertaken by manufacturers as best practice. In addition, although the UK and EU compositional standards are aligned in respect of spreadable fats this is not so for the non-Member State EEA states of Norway, Iceland and Liechtenstein. The mutual recognition provisions within this regulation permits spreadable fats and margarine lawfully produced and marketed in EU member states, EEA countries and other parts of the UK to be placed directly on the market in Scotland even if they do not meet the standard required by the Scottish regulations. We propose to remove these mutual recognition provisions in their entirety as the volume of products involved is thought to be minimal and accordingly the effect on trade with both the EU and England is expected to be minimal. However, it is perhaps worthy of note that although removing these provisions will prevent unfortified margarine being imported directly into Scotland, any such margarine imported into GB via England or unfortified margarine produced in England can and may continue to be sold on the market in Scotland under the terms of the UK Internal Market Act 2020 (UKIM).  

There are longstanding UK internal market recognitions provided for across these regulations. These provisions have had the effect of preventing any internal barrier to trade by providing for food products brought into Scotland from another part of the UK to be placed on the market even if they do not meet national composition standards. Given the introduction of the UKIM, which duplicates these provisions we wish to explore if there is any merit in retaining these internal provisions and we would welcome stakeholders views in this respect.

It is anticipated that making these collective changes will remove the risk of breaching WTO rules and strengthen Scotland’s reputation for food quality but we recognise this may also result in market disruption for Scottish and EU businesses who currently import and sell such products.

However, the sale of many of these products in Scotland may not be affected, as many will already comply with the national standards. Nevertheless, even if this is the case producers may need to change either labelling or formulation to continue to place their products on the market in Scotland.   

In recognition of this, we are also proposing to provide a period of adjustment, to allow businesses time to plan, and familiarise with the changes they may need or wish to make. This approach has been adopted in England and is currently being considered in Wales.