Post-Brexit UK will follow EU GMO, gene-edited crop rules, but long-term regulatory divergence still possible
Jan. 30, 2020
Brexit potentially poses some hefty structural challenges for food manufacturers, notably in relation to just-in-time supply chains and access to both skilled and unskilled labour. These speak to the defining Brexit issues of trade and immigration, and the food sector also has a huge amount at stake with regard to the third pivotal issue in the Brexit debate, whether or to what degree the UK should remain aligned with or diverge from EU regulation.
How Brexit may affect UK regulation with regard to novel foods, which is itself an EU regulatory classification that crucially includes genetically modified foods, was discussed at a Westminster Food & Nutrition Forum (WFNF) policy conference, held in London last week.
For decades, EU food regulations, actual or fictitious, have been used by those opposed to the UK's membership to fuel anti-EU sentiment. Given the history of sensationalist reporting, exaggeration and misrepresentation of EU food laws, it is no surprise that the question of divergence or alignment on novel food regulation is revealed to be more nuanced and complex than voters may have been led to believe over the past four years.
On 1 February, responsibility for approving novel foods passes from the European Food Standards Agency (EFSA) to the UK Food Standards Agency (FSA) but the processes will effectively remain aligned for the time being. The UK will have its own process but it will be essentially conforming to EU novel food regulation.
"Essentially nothing changes, as far as we're concerned, at least in the short term," Professor Peter Gregory, chair of the Advisory Committee on Novel Foods and Processes which advises the FSA on novel foods, said. "There's going to be a continuing need for proportionate assessment of new foods entering into the market to protect consumers and support the development of new markets, and it is that consumer protection and derivation of risk assessments that we are there to undertake."
Not all speakers at the WFNF conference were as supportive of the status quo, however. The EFSA approval process has been criticised for being too slow. Describing the EFSA approval process as "arduous and onerous" for food companies, Sian Edmunds, partner at UK law firm Burges Salmon, is concerned the FSA's new guidance is that the approval process will still take a minimum of a year.
"The timing of the process is already very long and a real barrier to innovation and trade and business generally," Edmunds told the conference. "I'm not suggesting we throw the safety baby out with the bathwater but I think Brexit is an opportunity for us to really assess whether this is a fit-for-purpose process."
"I think there is an opportunity here if we are bold enough to seize it," Edmunds continued, citing the example of CBD and insect-based protein products as "areas where society is really ahead of the regulation". Edmunds was one of several speakers to point to the failure of enforcement with regard to CBD, with many products already being sold that were not compliant with novel food regulation, adding that Brexit represented an opportunity to "align the regulatory process with the practical realities on the ground".
Moves towards food de-regulation are often characterised as Big Food or Big Ag lobbying for the relaxation or erosion of consumer protections. However, the novel foods arena is one where excessive regulatory burdens are just as likely to affect the smallest food companies, as some compelling remarks from the floor by Chris Green, co-founder of Young Foodies, which represents UK food start-ups and SMEs, as he echoed Edmunds' points.
The novel foods category clearly provides significant growth potential for food companies of all sizes, and a rich environment for innovation and development for the UK food sector at a time when any positive stimulus may be particularly welcome.
However, the influx of new or little known plants, the use of processes such as irradiation or the use of nanoparticles, not to mention the hugely contentious issues around biotechnology, clearly call for a level of consumer protection that errs well towards the side of caution. Prof. Gregory defended the precautionary principle on which EU novel foods regulation is founded, not least with some frank views on the approach of the US Food & Drug Administration (FDA).
"My understanding from what I've seen over the last few years is that the approach of the Food & Drug Administration is different. The FDA is different to basically the way the Europeans go about regulation. So, we have had cases where people have said this product of mine has already got FDA approval so it must be all right. No, because there's a different mindset so the FDA's approach to things is if you as a manufacturer tell me that this is fine, I'm likely to give you the benefit of the doubt in the FDA because if you're wrong someone's going to sue you.
"So, litigation is the solution to the problem. Whereas in the European Union we have taken the view that one responsibility of government is to protect its consumers and so this committee, this risk assessment, is part of that political commitment to the protection of consumers. That's the broad difference."
In fact, the question of divergence or alignment on food policy has found most public resonance with regard to conflicts that would stem from the UK seeking a free trade agreement (FTA) with the US. The emblematic issue in this context has been chlorinated chicken rather than GM, where EU and US policy could not be more at odds, though interestingly prime minister Boris Johnson alluded to freeing up regulation on GM repeatedly while campaigning. This contentious area is likely to be a key focus of the political deliberations and debate over divergence, as the UK has favoured taking a more permissive regulatory approach to GM for some years.
Huw Jones, professor of translational genomics at Aberystwyth University, said "there is an opportunity for the UK to look at how these regulations work" in relation to new scientific discovery and research in areas such as gene editing, genomics, plant-based and cell-based biotechnology, vertical farming and hydroponics. He also bemoaned that the debate over GM within the EU had become "too heavily politicised".
As with all things Brexit, the questions facing UK policymakers, food companies and campaigners in relation to novel foods regulation, are more complex and knotty than consumers would have gleaned from much of the campaigning and reporting since the EU Referendum was initiated.
The hope of academics such as Prof. Jones will be that the UK follow the evidence base but on this question the alarmist and less rational response may represent the wiser counsel.
Adhering as closely as possible to the EU's precautionary approach in key areas would be the lower-risk option, as it is with other major Brexit questions. However, comments made recently by UK Chancellor of the Exchequer Sajid Javid to the Financial Times, stressing there would "not be alignment" with EU rules post-Brexit and that companies would have to "adjust", suggests predictions that the Johnson government will prioritise divergence over trade friction are well founded.
On the other hand, given how some relaxation of novel foods regulation, notably simplification and acceleration of approval processes, could yield sustainability and health benefits, for example with more plant-based protein alternatives reaching the market more quickly, divergence in this area should not be seen as "race to the bottom" deregulation. Certain targeted reforms would not turn the UK novel foods category into the Wild West.
That said, novel food regulation includes some of the EU's most sacrosanct "red lines", suggesting significant concessions are unlikely. The degree of divergence in novel food regulation will itself be a measure of the extent to which the Johnson government is matching hard-Brexit rhetoric with policy action.
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