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House of Lords Hansard
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Materials and Articles in Contact with Food (Amendment) (EU Exit) Regulations 2019
19 March 2019
Volume 796

Considered in Grand Committee

Moved by

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That the Grand Committee do consider the Materials and Articles in Contact with Food (Amendment) (EU Exit) Regulations 2019.

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My Lords, I will speak to all four Motions in my name. Consumers in the UK benefit from a high standard of food and feed safety and quality. The Government are committed to ensuring that that high standard is maintained when the UK leaves the European Union. These instruments are crucial to meeting our objective to continue to protect public health from risks that may arise in connection with the consumption of food.

These instruments, which all concern food and feed safety, relate to those substances collectively known as regulated products as well as to animal feed hygiene and marketing and are made under the powers in the European Union (Withdrawal) Act 2018 to make necessary amendments to UK regulations. The Government’s priority is to ensure that the high standard of food and feed safety and consumer protection we enjoy in this country is maintained when the UK leaves the European Union. These instruments will correct deficiencies in those regulations to ensure that the UK is prepared in the event that the UK leaves the EU without a deal on exit day. They are limited to necessary technical amendments to ensure that the legislation is operative on exit day. No policy changes are made through these instruments, and we do not intend to make any at this point.

The primary purpose of these instruments on regulated products used in food and animal feed is to ensure that UK domestic legislation that implements directly applicable EU regulations continues to function effectively after exit day. The proposed amendments are critical to ensure that there is minimal disruption to novel foods, feed additives and other regulated products collectively if we do not reach a deal with the EU. These instruments, which lay down fundamental principles underpinning the law on regulated products and basic food business requirements as well as describing certain functions carried out by EU institutions, will function effectively at exit day.

The Materials and Articles in Contact with Food (Amendment) (EU Exit) Regulations 2019 include all items intended to come into contact with food, directly and indirectly. Also known as food contact materials, they include processing line machinery, transport containers, kitchen equipment, packaging, containers, cutlery, dishes and utensils and can be made from a variety of materials including metal, paper, plastic, wood, ceramics and rubber. Any material that comes into contact with food must be safe and fit for purpose. The regulations lay down that materials and articles intended to come into contact with food should be manufactured in line with good manufacturing practice, so that under normal and foreseeable conditions of use they do not transfer their constituents to food in quantities that could endanger human health, bring about an unacceptable change or have an adverse impact on the composition, taste or texture of the food.

The Genetically Modified Food and Feed (Amendment etc.) (EU Exit) Regulations 2019 lay down that all GM food and feed must undergo pre-market authorisation before being placed on the market. I emphasise that this instrument is not about changing any policy on GM foods, allowing more or less on the market; it is simply about transferring the functions and powers currently held by European bodies back to the UK. GM protein feed is essential for our livestock industry and there are no viable alternatives at present. We will continue to take a robust approach to assessing GM products and only those that we deem safe will be made available for those who wish to use them.

The Novel Food (Amendment) (EU Exit) Regulations 2019 require that novel foods must be assessed for safety before they are introduced into the market to ensure that they do not present a risk to public health. This includes foods that are relatively new or those that do not have a significant history of consumption in the EU and are referred to as novel foods.

The Animal Feed (Amendment) (EU Exit) Regulations 2019 will ensure that the retained EU legislation relating to feed additives, feed hygiene, sampling and marketing is operable after exit day. The retained EU law will be the legislative cornerstone for feed safety in the UK after EU exit and will underpin all other feed safety legislation in the UK. What farmers feed their livestock will vary for a variety of reasons but, whether it is grass, cereals, compound feedstuffs or by-products from the brewing industries, ensuring that the feed we provide to our animals is wholesome and safe is a pre-requisite to food safety.

As I have said, there are no changes to policy in these instruments beyond making the minimal changes necessary to rectify deficiencies in the retained EU legislation. For food and feed businesses, there will be no change in how they are regulated or in how they are run. All existing regulated products permitted for use within the UK prior to exit day will continue to be permitted immediately after exit and all conditions and requirements attached to their use will be preserved. This will ensure continuity and clarity for UK food and feed businesses and those exporting their food and feed products to the UK. Thus, consumers in the UK will benefit from high standards of food and feed safety and quality. The Government are committed to ensuring that these standards are maintained.

These instruments introduce a proposed transfer of powers to UK entities to support a UK-centric regulatory regime for regulated products. Currently, the European Commission holds a range of powers and functions under EU law which enables new products to be placed on to the market, amends conditions of use and purity criteria and removes products from the permitted lists when required. These instruments transfer these powers from the Commission to Ministers in England, Scotland and Wales and to the devolved authority in Northern Ireland. They also transfer responsibility for risk assessment from the European Food Safety Authority to the food safety authorities FSA and FSS, which will continue to deliver independent, open, transparent, science and evidence-based advice.

The FSA has strengthened its capability and recruited 140 extra policy and science experts to support the risk assessment and risk management processes that apply to these products. I am saying this now because the noble Baroness, Lady Walmsley, asked me about this last week. The FSA has received an extra £14 million to deal with EU exit and a further £16 million will be provided this year. In turn, the FSA provided a grant fund of £2 million last year to local authorities to support food safety activity in relation to EU exit pressures and a further £2 million will be made available this year.

Let me be clear that these instruments will have no impact on the food industry and that there are no changes to the controls on the use of already authorised products. There are no changes to the technical data and studies that will need to be provided for new authorisation applications. We will continue to take a robust science-based approach to what we permit on to our market.

It is important to note that the devolved Administrations have provided consent for these instruments. Furthermore, we have engaged positively with the devolved Administrations throughout the development of the instrument, and this ongoing engagement has been welcomed.

These instruments constitute a necessary measure to ensure that our food legislation relating to novel foods, feed additives and other regulated products collectively continues to work effectively after exit day. With the assurances I have given, I hope noble Lords are able to support these important regulations. I beg to move.

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My Lords, I thank the Minister for her introduction and assurances about resources for the FSA. I had not intended to ask her about that again, but I am grateful anyway. It is vital for the future health of our country to ensure that the correct legal infrastructure for food safety is in place if we exit the European Union. Therefore, it is important that these statutory instruments are passed. Yet it is also our duty to give these pieces of legislation adequate scrutiny to ensure that the high food standards and safety regulations our EU membership has provided for so many years are maintained.

On the matter of scrutiny, we depend on the views of those affected by this legislation—the people in the industry. However, the same consultation has been used for a number of these regulations, and I question whether it is allowing sufficient public consultation without confusing several issues in the same document. Does the Minister accept that using the same consultation for SIs with completely different purposes means that this legislation has not received adequate public scrutiny, and has restricted the capacity of experts to respond adequately?

There are also concerns, as with many other SIs, about the powers being transferred to Ministers. If we leave the EU with a deal, there will be a transition period during which our new relationship with the EU will be negotiated. However, during that time, the Government intend also to try to secure trade deals with other countries. I and many of the respondents are concerned that our high standards should not be used as a lever to achieve trade deals, resulting in lower standards for consumers. The Government have promised that this will not happen, but they also promised that we would leave on 29 March and it does not look as though we will. With the best will in the world, there will be pressure on Ministers to secure a trade deal they can brag about, and many are concerned that they will offer whatever comes to hand to achieve it. The trouble is that these SIs give them the power to do that. What reassurance can the Minister give that this will not happen?

We are being reminded that we will start out in line with EU regulations when we leave. That is true; however, these EU regulations are not static and will change over time. Can the Minister say what work is being done to prepare the UK to introduce speedily matching changes as they happen? If they do not do that, our exporting food producers will be in trouble. Also, how do the Government plan to communicate with those who work with animal feed or human food to ensure that they are kept up to date with future changes in the EU that we will also adopt in the UK, especially if we should diverge at some future date? Have the Government tested systems for taking on duties that were previously done by EU organisations, such applications for authorisation to put new animal feed additives on to the market?

Then there is the issue of risk. We hear that risk management functions will be split across the devolved Administrations, particularly between the FSA and the FSS. It is therefore possible that different approaches to risk management on food safety could be taken in, say, England and Scotland. This would be confusing enough at home, but could also undermine confidence in our food export market.

This issue comes into sharp focus when we look at genetically modified food and feed. Currently, the European Commission, assisted by the appropriate committee, is responsible for authorisations and their withdrawal. The instrument we are debating today gives that power to the devolved Administrations. Can the Minister say what would happen if they came to different conclusions about GM foods? It concerns me that the consultation on this instrument did not ask explicitly about genetically modified food and feed and, as a result, none of the respondents spoke about it at all. How can the consultation therefore be said to represent the views of industry and experts on this issue? The comment I made earlier about using our food standards as a bargaining chip applies even more to GM foods and feed. The Government must understand that this is a very controversial issue among members of the public, who have a right to know that appropriate controls will continue and who would want to know them to be homogeneous across the country. How will this be achieved?

Finally, in the Materials and Articles in Contact with Food (Amendment) (EU Exit) Regulations, I am surprised that the Government have not taken the opportunity to regulate to ensure a reduction in the use of single-use, non-recyclable or non-compostable plastic containers and film for food packaging. Do the Government plan to use their new freedoms to do so?

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My Lords, I have a question about the GM aspect of these statutory instruments. I am not against them in any way, nor am I against genetically modified crops or food. It always amazes me that the public are apparently—people have done questionnaires on it—overwhelmingly in favour of genetically modified antibiotic chains for improved antibiotics, but they are not in favour of genetically modified crops which might save the environment because of the reduced use of chemicals.

In the light of the tendency of the UK public to be very suspicious of GM crops and food, it is vital that we take every precaution possible to ensure that there are no scare stories. I know these SIs are about genetically modified food, but you cannot have genetically modified food without growing the food in the first place. There are two concerns about GM food. One is the effect of such food on human health, which is what these statutory instruments are really all about, and the other is the effect of GM products on the environment. I may be behind the curve, and there are probably other statutory instruments coming or that have been and gone which put in place the correct processes for testing the environmental consequences of GM products. This statutory instrument is all about the Food Standards Agency, and I feel there ought to be an environmental element when we are talking about GM foods. Will the Minister let me know exactly what is happening on the environmental side? I should have declared an interest at the beginning as I chair the Centre for Ecology and Hydrology, which looks at the environmental consequences of what we do on our land.

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My Lords, I, too, should make a declaration. I refer to my entry in the register of interests as chair of Rothamsted enterprises, which is an agricultural research institute.

I thank the Minister for her introduction today, and I echo a number of the concerns and comments made by other noble Lords. We accept that these regulations are necessary to ensure that we maintain high-level consumer protection with regard to food and feed safety and to the legal framework that goes with that. As the Minister said, in the main these SIs make minor and technical amendments that will ensure continuity in the day-to-day legal requirements and obligations for businesses and public health bodies to act in the interests of the public. However, we have some concerns around the UK’s preparedness for the additional responsibilities in terms of resources and staffing levels, and the impact on business and industry and their preparedness to take on this extra work.

On the issue of food standards, it is clear that public safety, of course, has to be paramount and that any future changes to regulatory controls after the UK leaves the EU should provide the same, or an improved, level of consumer protection. As the Minister said, these regulations designate responsibilities currently undertaken by the EFSA to the appropriate domestic equivalents, including the Food Standards Agency in England, Wales and Northern Ireland and Food Standards Scotland in Scotland. In this context, we are concerned that, only last month, Secretary of State Matt Hancock criticised the Food Standards Agency for being “over-restrictive” and said that it needed to have a sense of perspective. This is the agency to which considerable new powers will transfer in these SIs. It would be helpful if the Minister could clarify the Secretary of State’s comments and confirm whether the Government have full confidence in this organisation going forward, given that so much is resting on its shoulders.

There is an issue about resources, because between 2010-11 and 2016-17 the Food Standards Agency saw its budget cut by 26%—nearly £30 million—and lost more than 21% of its staff. The Minister, anticipating the question that she did not get from the noble Baroness, Lady Walmsley, talked about extra cash and extra staff. However, I do not think that the sums quite add up in the way that she would have us believe. The sums that she was talking about do not just cover the FSA’s responsibilities conferred by these SIs; it has a much wider responsibility for imports and exports and all the work that needs to be done at the borders. So only a proportion of that £40 million and £16 million will go into doing the food standards protection that is set out here. Can the Minister break down those sums a bit more and be more precise about what is being allocated to these particular functions?

There is also an issue with local authority responsibilities. Between 2012-13 and 2015-16 we saw a 22% reduction in the number of local authority food law enforcement officers. According to a 2015 survey by the Chartered Institute of Environmental Health, 47% of respondents said that resources,

“were only just adequate to provide a basic statutory service, left no contingency, and that any further cuts would compromise service delivery”.

What support is being offered to these bodies to help them adapt to and cope with their new responsibilities? Can the Minister reassure us that they do indeed have the necessary funding and staff to take on these additional responsibilities?

The noble Baroness said that extra staff were being recruited, and mentioned 140 scientists. I have been in many different discussions on SIs over the past few weeks, and in all of them it was claimed that extra responsibilities were being given to scientists and extra staff were being taken on to do this scientific analysis. It makes you wonder if at some point we are going to run out of scientists, particularly if we restrict the number of EU workers—who might be scientists—who would otherwise come here and help with that work. At some point I can see that there will be a crisis and we will run out of people who are prepared to do the work that we require them to do.

There is also the issue of how quickly people can be trained. If we are recruiting new staff, these are quite hefty responsibilities. People cannot drop in and start on day one with a full range of skills. Again, a lead-in process will be required. Can the noble Baroness say how quickly she thinks the 140 scientists will be up to speed and fully operational?

In the public consultations, local authorities raised concerns about the need for them to update legal references in official documents and online. They said that it would take significant time and effort. They also raised concerns about the need for additional activities for local authorities and port health authorities that may arise from these and other functions. They suggested that the payments for this extra business should be on a full cost recovery basis or funded by the Government as a completely separate entity to avoid additional financial burdens on local authorities. Can the Minister confirm how the Government will fund the extra work for local authorities? Is it intended that they will meet the full additional financial burden that will rest on their shoulders, particularly in the event of a no-deal Brexit—where, as I am sure we all appreciate, there is lots of scurrying around and extra money being spent on preparedness for that eventuality?

In terms of resources, an enormous amount of expertise obviously rests at the European level. What ability will we have to carry on sharing the intelligence of European bodies to make sure that we can still tap into their scientific knowledge and skills, either formally or informally, so that we do not have to start everything from scratch again? Will there be ongoing arrangements with the EU for monitoring, collecting and sharing data, and reporting mechanisms? That would obviously be in our interests. Which bodies will be able to scrutinise the performance and delivery of our UK arrangements? This work would otherwise have been done by the European Commission. What assessment has been made of their capacity to take on this work? If we are not careful, as we have said in other scenarios, the UK will end up marking its own homework without an independent source of scrutiny to oversee it.

I turn now to novel foods. As the noble Baroness said and the EM sets out, under EU regulations, any food not consumed “significantly” prior to 1997 is considered a novel food. The novel foods regulations before us ensure that we will retain the requirement for a pre-market safety assessment before being placed on the market. This is done, quite rightly, in the interests of safeguarding public health. The pre-market safety assessment examines a range of issues to establish whether consumers would be at risk if they consumed the novel food, how high the level of risk is likely to be and how, if a risk is identified, that risk would be managed. Can the Minister elaborate on how this will be managed domestically after exit day? Who will carry out the pre-market safety assessments? Again, will there be independent scrutiny of such assessments? Moreover, will the risk analysis err on the side of caution given that, when it comes to food, there could be serious public health implications if we do not get it right?

I shall move on. The next SI covers animal feed and, as the noble Baroness said, establishes a procedure for authorising the placing on the market and use of feed additives; it also sets out rules for the supervision and labelling of feed additives and pre-mixtures. Both noble Lords who spoke raised particular safety concerns here again. We all remember what happened when BSE broke out. We had not got feed additives right, so obviously there is a cause for huge public concern about this. The noble Baroness, Lady Walmsley, rightly mentioned testing new additives fully before they are placed on the market. Again, can the Minister explain how it is perceived we will go ahead as regards testing and what the mechanism will be? Who will be responsible for overseeing it and ensuring that all those feed additives are tested thoroughly and appropriately?

I turn now to the materials and articles in contact with food SI. It sets out to ensure that wrappings do not transfer their contents to food in such quantities as would endanger human health. That includes the constituent parts of recycled plastics. There is mounting scientific evidence that plastics are harming our health as well as the environment. Most of our food containers, from bottles to the linings in aluminium cans, plastic wraps and salad boxes, are made using polycarbonate plastics, some of which have bioactive chemicals, like bisphenol A, known as BPA. These manmade chemicals leach from our containers or wrappings into the food and drinks they are holding, especially when they are heated. The regulations retain the restrictions on the use of BPA in varnishes and coatings intended to come into contact with food. However, some campaign groups, as the noble Baroness may know, have called for a full ban on the use of BPA in food packaging. What assessment have the UK Government given to banning BPA entirely and do they have any plans to consult on this? The authorised list of substances permitted for use in food contact plastics is generally updated several times a year. Who will now undertake this and do they have sufficient resources—we are back to resources, of course—to be able to do so?

On the issue of businesses and industry, it is important that we have a smooth transition of these arrangements for businesses in the sector and consumers after exit day. While the EMs state that there will be no change to the day-to-day legal requirements and obligations for businesses, there will be administrative and technical follow-up that needs to take place. Indeed, there is a cost to business that the EM identifies. In the public consultation response, there were concerns about the additional burden on industry and enforcement authorities which would be needed to communicate changes. Can the Minister say what assessment has been made of the costs of that additional burden and is she able to reassure the House that measures are in place to ensure that these SIs will be communicated with sufficient lead time for those on the front line to make the necessary preparations to minimise the impact of any changes? Are they aware of the costs that they can incur in doing this, and have they said that they are content to bear the burden of those costs? That is all I wanted to raise this afternoon, but I look forward to the Minister’s response.

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My Lords, I thank both noble Baronesses for their valuable contributions to this debate. I do not think I have ever had that many questions, so I will endeavour to answer both noble Baronesses and the noble Lord, Lord Cameron of Dillington, who asked an important question regarding GM foods.

Despite the many questions, I want to state again that these instruments make no changes to policy or how food businesses are regulated and run. The noble Baroness, Lady Jones, raised important issues and I have empathy in relation to BPA, but the policy is what it is now and we are not changing any policies through these instruments. These SIs are limited to necessary technical amendments to ensure that the regulatory controls for food and feed continue to function effectively after exit day if the UK leaves the EU without a deal. The aim is that public health is protected, and we all know of the discussions taking place in the other place, and where we are at—indeed, things may change again next week.

Let me do my best to answer some of the questions, bearing in mind that, as I have said, these are technical amendments and no changes to what we see today are envisaged.

The noble Baroness, Lady Walmsley, raised the issue of the consultation’s adequacy. Of course, these four SIs make only minor amendments or technical fixes necessary to ensure that we have a functioning statute book. In this case, a separate consultation would have served little purpose as there is no change in policy intent. These SIs are not about changing the robust controls we have in place, for instance for GM food and feed. They maintain authorisations existing at the point of exit. That is why a separate consultation was not needed. I hope to reassure the noble Baroness by saying that I do not believe that this caused businesses any confusion.

The noble Baroness also asked me whether the new authorisation system will be for regulated products after we exit the EU. The UK application process for food and feed authorisations will be similar to that operated by the EU. Food and feed businesses will be familiar with the arrangements for EU application dossiers, and the same data will be required by the UK in its assessments, so businesses will not get two variations. Applications will be assessed using the risk analysis process developed by the FSA.

The noble Baroness asked whether the Government will consider single-use plastics. Indeed, the noble Baroness, Lady Jones, also raised that issue. The UK will maintain the requirements for plastic food contact materials either as they currently stand or as they will be when and if we exit the EU. Single-use plastics will be under Defra’s remit. Of course, the FSA works very closely with Defra.

The noble Baronesses, Lady Walmsley and Lady Jones, raised the issue of the scope for UK internal regulatory divergence. I reassure them that the FSA is working with the Department of Health and the devolved Administrations to put in place a UK framework for food and feed regulation to guard against divergence. There will be one framework, but this is a devolved matter, and if there were any changes over time, they would discussed within that framework.

The noble Lord, Lord Cameron of Dillington, asked about the environmental impact of GM food. I assure him that there is no UK cultivation of GM food at present. Environmental monitoring plans form part of the authorisation decision for GM food and feed. Of course, as we move forward, any discussions or scientific evidence will be a matter for Defra and the FSA to work on together. However, these SIs do not relate to wider environmental issues.

The noble Baroness, Lady Jones, asked whether the FSA has sufficient resources. Indeed, I put that question to officials myself. I asked whether we have enough money and whether we will be able to operate and deliver this. I assure noble Lords that at the recent open meeting of the FSA board, it confirmed that it has prepared a fully effective regulatory system to protect consumers on exit. The FSA is satisfied that its preparations are sufficient; that information does not come from just me.

The noble Baroness also asked local authority funding. I hear what she says. I do not have the number of people working in local authorities but, as I mentioned in my opening comments, the FSA provided local authorities with a grant fund of £2 million last year to support food safety activity relating to EU exit, and a further £2 million will be made available this year.

The noble Baroness, Lady Jones, asked about enforcement and local authorities ensuring feed safety after exit. I reassure her that it is not anticipated that there will be any increase in the total amount of feed entering the UK. The current system of checks on imported high-risk foods from third countries by local authorities will continue, and the additional checks required will be for feed entering the UK from the EU. Feed business operators in the EU are controlled by the same rules as those currently in place in the UK and, as such, the risk from these products is considered to be low. Therefore, additional checks required at the point of entry will be minimal. Of course, local authorities can apply for additional funding if they feel that they need it.

On the SIs about food safety and health, last week and today the noble Baroness, Lady Jones, raised RASFF membership. I stress again that continued access to the rapid alert system for food and feed has been identified as a key priority by the Government. It clearly benefits the UK and EU partners mutually and the Government are pressing for full access to this system. In addition, the FSA has built additional capability and capacity, including monitoring of key data sources, as a new strategic surveillance programme to inform us of potential emerging food safety risks. This is in addition to the RASFF data that we would receive as a third country from the EU. The FSA is engaging with competent food authorities across Europe and worldwide, including engagement programmes with the International Food Safety Authorities Network, INFOSAN, which is managed jointly by the Food and Agricultural Organisation—the FAO—and the World Health Organisation—the WHO—of the United Nations. We are not only engaging with RASFF but are taking a worldwide approach. Continuing access to data is a priority.

The noble Baroness, Lady Jones, asked when the scientists and new recruits will be in place. I can only restate what I said—I am not in a position to go further—that there will be 140 extra staff, of which I understand approximately 90% are already in place, which is good.

The noble Baroness, Lady Jones, asked how novel foods will be assessed. Until 2015, risk assessments for novel foods were carried out at a national level. In the UK, the independent scientific Advisory Committee on Novel Foods and Processes undertook that role. However, when the EU legislation was revised, EFSA was tasked with this risk assessment function. As I said in response to an earlier question, the FSA and FSS will undertake this role and the new advisory committee that will be set up will resume its role.

I was asked what assessments have been made of BPA. At the moment, whatever we leave with on exit day will be put in regulations. Any future changes will have to come to Parliament to be considered and for appropriate legislation to be put in place. It would be inappropriate for me to project my own views at this stage.

I think I have covered the main issues that were raised. I hope that I have reassured noble Lords. I am looking round for nods. I think that I have answered the questions put to me. These SIs will correct deficiencies in retained EU regulations by removing references to EU institutions and instead reflecting UK institutions. This will ensure that current arrangements continue to be operable in the event that the UK leaves the EU without a deal. The instruments will protect public health from risks that may otherwise arise and provide continuity and clarity for UK businesses. I hope that I have done enough to reassure noble Lords.

Motion agreed.