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Nutrition (Amendment etc.) (EU Exit) Regulations 2019

Volume 796: debated on Thursday 21 March 2019

Motion to Approve

Moved by

My Lords, this statutory instrument has been laid to ensure that, following our exit from the European Union, the people of the United Kingdom can continue to benefit from the same world-leading standards of safety and quality for nutrition regulation as they do today. Primarily, successful passage of this SI will provide certainty for businesses and the public by ensuring a functioning statute book of nutrition legislation when the UK leaves the EU. It is no secret that both the Government and Parliament have shown a clear preference against a no-deal outcome. However, the Prime Minister has been clear that it will continue to be appropriate to prepare for a no-deal scenario, and this remains a priority for the Government. The EU is stepping up its preparations for no deal and it would be irresponsible for the UK not to do the same.

This SI provides all the necessary legislative building blocks to ensure readiness on exit day in all scenarios, guaranteeing that this aspect of nutrition legislation will continue to operate at the same high standard as it does now long after we exit the EU. The instrument covers the following aspects of nutrition legislation: the health or nutritional claims that food manufacturers can make for the foods they produce; the vitamin and mineral substances permitted for use in food supplements; the vitamins and minerals that can voluntarily be added to fortify foods, such as to breakfast cereals or soft drinks; the content of foods for specific groups, such as young children; foods that are used for special medical purposes, such as those for people recovering from illnesses; and total diet replacement foods for weight control.

Changes made through this instrument are largely technical in nature, amending EU-specific references in retained EU and domestic law which will no longer be applicable when the UK withdraws from the EU. Perhaps the most important change made by this SI is the transfer of powers currently held by the European Commission to the Secretary of State, Scottish Ministers, Welsh Ministers and, in relation to Northern Ireland, the Department of Health as applicable, ensuring that the UK reclaims full legislative control in this area. The SI also ensures that all applicable registers, annexes and lists will apply effectively in UK law as they stand on exit day. This has the explicit aim of mirroring the existing regulatory system, ensuring minimal disruption to industry and delivering continuity for both businesses and consumers.

Crucially, this SI provides for the transfer of functions in nutrition and health claims applications from EFSA, the European Food Safety Authority, to an expert committee in the UK. To guarantee minimal disruption, my department has been working closely with Public Health England to establish the new United Kingdom Nutrition and Health Claims Committee. The UKNHCC would replace EFSA’s Panel on Nutrition, Novel Foods and Food Allergens, and assume responsibility for providing independent scientific opinion on any new nutrition health claims submitted for use in the UK to the four UK Administrations. The committee would operate in a similar way to and to similar timescales as the current EFSA process, providing further continuity to business.

I am pleased to report to the House that, since the debate in the other place, excellent progress has been made in establishing the committee. Earlier this month, following the open and transparent recruitment exercise, appointment letters were issued to eight exceptional individuals selected from a number of high-calibre applicants. Further details of these appointments will be available in the public domain at the point the committee is required. With an excellent panel and chair in place, I can confirm that the committee is ready to come into effect if required.

Given the scope of the instrument, the House might ask why food for special medical purposes developed specifically to satisfy the nutritional needs of infants, such as infant follow-on formula, do not appear to be covered. While delegated legislation relating to infants and infant formula has indeed come into force under EU regulation 609/2013 to enable food business operators to adapt to the new requirements, those regulations do not apply until February 2020. As this SI covers only legislation in force and applicable at exit day, it was not appropriate to include them in this instrument. However, I reassure the House that it is the Government’s full intention to bring forward domestic legislation mirroring this delegated legislation as closely as possible at the appropriate time. Until then, the existing compositional, labelling and advertising rules will continue to be enforced by statutory instruments already in place, and will not be affected by the UK’s exit from the EU.

As I stated earlier, this instrument, respectful to devolution settlements, provides for the relevant Commission powers to be transferred to the four Administrations and includes a power for the Secretary of State to make legislation for the whole UK with the consent of the devolved Administrations, which have been involved with the drafting of these regulations at every stage. I am grateful to them for all their efforts to ensure that our high standards for nutrition are maintained after EU exit.

For the purposes of maintaining free trade across the UK and to retain continued consumer confidence, it is important that policy consistency remains where possible, but that the potential for necessary and appropriate divergence which does not disproportionately impact on the UK internal market also remains. This is to reflect or respond to country-specific needs where risk assessment shows this is both necessary and proportionate to protect consumers, such as on public health grounds. Officials have therefore been working collaboratively across the UK to develop frameworks which will deliver a common approach to nutrition policy and ensure that devolved interests are taken into account in the formulation of new policy and future decisions taken within central government concerning nutrition.

Proposals underpinning this SI were subject to a public consultation during December. As no significant changes to the existing regulatory regime were proposed, costs to business were deemed to be below the de minimis threshold. Departments are not required to publish de minimis assessments. However, we conducted an equalities impact assessment and found no impact on any of the protected characteristics as defined in the Equality Act 2010. We are grateful to the broad range of stakeholders that responded to the consultation, including food manufacturers, trade bodies, a local authority and members of the public.

On 25 February we published our response, which detailed how respondents were supportive of our proposals but sought more detail on how they would work in practice. Appropriate guidance, which my department plans to publish via bulletins ahead of exit day, has been tested with industry via the Department of Business, Energy and Industrial Strategy’s business experts group. Having received excellent feedback on the draft, I am confident that it is fit for purpose, clearly communicates any changes in process and provides all the additional information respondents requested.

We know that this is an important area of legislation, with many thriving businesses operating in this space. I again assure the House that it is our overarching aim that the amendments made by this instrument provide continuity for businesses and ensure that, when the UK leaves the European Union, the exceptional standards of safety and quality for nutrition regulation will continue. These draft regulations were passed in the other place on 28 February. With the assurances I have given noble Lords, I hope that they will support this necessary legislation. I beg to move.

My Lords, I will speak briefly. I thank the Minister for proposing these regulations. I remember several years ago one of the issues we had to deal with in the European Union was that the thriving industry in the UK for nutrition, vitamins, minerals and substances was much more advanced than those of many of our European colleagues. The framework we are now looking at, and will be pulling out of, is very largely of our making. That standards will be transferred intact is not surprising, since we developed them 10 or 15 years ago in the UK; we did so partly because we wanted access to the markets of the European Union for supplements, vitamins and so on.

My first question is this: what will happen to those markets? After Brexit day, what will happen to this industry, where we have been leading in Europe? It is quite clear that the purpose of this SI is to remedy deficiencies in UK legislation relating to nutrition arising from the withdrawal of the UK from the European Union without a deal. The Explanatory Memorandum says, and the Minister repeated, that there would be a,

“low level of impact … on businesses”.

But no impact assessment has been made—although I accept that the results of the consultation came to that conclusion. It also says that some “administrative burden” will be placed on businesses. That is a matter of some concern, and one we would wish to keep under scrutiny. Some of these businesses are not huge corporations but are relatively small; any additional administrative burden is a matter of concern.

The Government should be congratulated on having got the consultation published, and the industry should be congratulated on responding in the 10 days it was given to do so. It is good that those results have been published. All in all, those things seem to have worked well in preparation for Brexit without a deal. But I repeat what I have said on every occasion I have had to deal with these SIs: it is a shame that we have to do this; it is a terrific expense and a waste of everybody’s time. However, given what has been going on down the other end of this building over the past 24 hours, it is probably even more essential that we get these things on the statute book and that they provide the necessary protection for these businesses.

I have a particular question to ask, which I am not sure the Minister will be able to answer. In the process of researching the impact on our nutrition industry in the event of a no-deal Brexit, my attention was drawn to how sports nutrition would be impacted. This is to do not just with the production of sports nutrition of various sorts but with regulation of the sports industry. The European Specialist Sports Nutrition Alliance agrees with many companies working in the UK and the EU which manufacture sports nutritional products that the future is uncertain. It says that it does not know what the outcome will be but that “there are many concerns”, such as:

“Is the UK going to diverge in terms of regulation, from the EU?”

For sports industries, that is a big question. I do not expect the Minister to have an answer now, but it needs an answer. Those industries need to know what the impact will be on them and on sports nutrition.

My Lords, I congratulate the Minister on bringing forward what will obviously be needed as we approach a situation in which no deal might be more likely. I have a number of questions.

My noble friend’s department has used the right language in this statutory instrument, but I am concerned that that language is not being reflected in, for example, the discussions on the Trade Bill that we had yesterday. On food safety, our honourable friend the Parliamentary Under-Secretary of State for Health and Social Care, Steve Brine, talked in the other place about retaining high standards and protections for the consumer, and safeguarding public health, as my noble friend did. Can the Minister use her good offices to make sure that all departments are using the same language?

It used to be that, according to the original Article 36 of the treaty of Rome—noble Lords will forgive me, but I cannot remember which article it now is—we could ban a nutrient or any ingredient that was deemed by the European Union to be unsafe on the grounds of public safety. I am at a loss as to why parliamentary draftsmen for one Bill—the Trade Bill—do not accept that the tried and tested, recognised language used by the Department of Health and Social Care and the Department of Environment, Food and Rural Affairs should not be used by the Department for International Trade. If the Minister could make that point throughout, that would be extremely helpful.

Is the Minister able to tell the House this afternoon when the appointments to the committee are likely to be made, and when it is likely to be set up?

On the current exclusion for infant and follow-on formula, I understand that the department will issue further advice on that “once the EU exit position is clarified”. That could take a while. As our honourable friend Steve Brine said in Committee next door:

“The Department will issue further advice on that once the EU exit position is clarified, which is clearly yet to happen”.—[Official Report, Commons, Thirteenth Delegated Legislation Committee, 28/2/19; col. 10.]

I am pleased to see that he has a sense of humour.

What will the position be on sharing with us decisions taken by the EFSA panel—and indeed on access to the food alert system, which will presumably apply to nutrients as well—and the sharing of information and decisions made by the panels which will be set up in this country? I remember going to Denmark when one of the few things that used to be cheaper there was vitamin C. You could buy two or three tubes of it in one go across the counter, until it was put on the proscribed list, which is regularly updated—I had not realised that you could overdose on vitamins C and D, and so on. Many other medicinal products regularly used by women of a certain age were also limited in scope as well. It seems good practice to share the decisions that are taken in the UK by the various panels, and to continue to share information and ask EFSA to let us know what its conclusions are. Presumably, we will wish to rely on the widest possible available scientific evidence.

With those few questions, I welcome this statutory instrument. Clearly, it will be helpful to know when the committee will be appointed and set up, the position on infant and follow-on formula, and the position on best practice. However, my main concern is that all departments should be using this language, not other language that is much less transparent and even opaque.

My Lords, people are right to be concerned about food safety and nutrition issues, the integrity of some of the claims that are made and the effects of substances which are permitted for use as supplements for various purposes. People who are presently satisfied by the standards set by the European Food Safety Authority have legitimate concerns about future regulatory approaches and potential changes to them.

The draft nutrition regulations in this SI may provide some temporary reassurance for consumers and businesses using these products, but, as indicated by the Minister a few minutes ago, they do not provide any sort of long-term reassurance about what may happen in future. As she said, regulations in the UK and the EU will be identical on departure day—whenever that might be—but they will inevitably divert in future when different people in different bodies come to different conclusions. Can she therefore indicate what the issues will be when a UK body begins to make different regulations to those determined by the European body?

Can the Minister indicate what additional costs there may be in the long run from setting up new bodies to replace EU regulations with UK ones? Perhaps she can tell us what have been the recruitment costs for the new bodies and what will be the ongoing costs of running them. Before June 2016, many people were led to believe that they would be freed from sharing the cost of things like the European Food Safety Authority. However, what will be the costs of establishing and running these bodies, in particular the new UK Nutrition and Health Claims Committee?

We are told that the processes to be undertaken will be similar to present ones at EU-wide level, but presumably businesses seeking to sell products such as nutritional supplements across the UK and the EU will in future need the approval of both EU and UK authorities. Will this not mean that the burdens and costs of regulation for us outside the EU will be increased, rather than reduced as many people were led to believe? The extra costs and burdens of duplicating UK and EU approval processes will surely hinder future research and innovation.

Most fundamentally, will the Minister confirm that leaving the EU on a no-deal basis would mean that we deny ourselves and the rest of the EU the benefits of sharing costs and expertise on these issues across the UK and the EU?

My Lords, as always, I take this opportunity to thank all noble Lords for their constructive and valuable insights. I shall endeavour to do my best to answer the questions raised by the noble Baroness, Lady Thornton, my noble friend Lady McIntosh and the noble Lord, Lord Rennard.

I entirely agree with the noble Baroness, Lady Thornton, and am very grateful for her comments. The UK currently benefits from world-leading standards in both the safety and quality of its nutrition regulation and, as I said, we will be closely mirroring the existing regulatory framework. I reassure noble Lords, especially my noble friend Lady McIntosh, that this statutory instrument will ensure that we maintain those high standards if the UK leaves the EU with no deal.

I am also pleased to hear that the department’s presentations are clear, because it is very important that what we are saying in this area is communicated effectively and with understanding. I appreciate my noble friend’s comments.

I say again that this SI ensures a functioning regulatory system for this aspect of nutrition legislation. In response to the noble Baroness, Lady Thornton, it will ensure minimum disruption to businesses, consumers and the public. We are fully prepared. The UK has a long tradition of close scientific collaboration with EFSA, which we of course greatly value. I say to my noble friend Lady McIntosh that we will endeavour to continue to work as closely as we possibly can with EFSA. However, the SI ensures that in the event that the relevant functions of EFSA can no longer be accessed, the UK is fully prepared to exercise them.

I reassure all stakeholders and noble Lords that it is our policy intention to mirror the existing regulation as closely as possible. The noble Lord, Lord Rennard, asked about the future. I understand and appreciate that, and it is a legitimate issue to raise—the noble Baroness, Lady Thornton, also raised it—but this is an exit SI: if there is no deal, it will come into play. Everything is open for negotiation once we leave the EU. I cannot guess what may or may not happen in future; all I can say is that, currently, we will mirror current regulation as far as we possibly can and continue to work with the EU on the rapid alert system that my noble friend Lady McIntosh mentioned. If and when we leave the EU, the EU rapid alert system includes a duty of care to inform third countries, so that information will continue to be shared.

On the impact on businesses, I do not want to say to the noble Baroness, Lady Thornton, that there will be no impact. We appreciate that there may be some additional administrative burdens on companies which have to submit claims to both the UK and the EU authorities if they want to claim in both areas, but we intend that procedures for submitting claims in the UK will closely follow those already in place in the EU. We estimate that the application paperwork should take nominal time—approximately 30 minutes—to complete. I say to the noble Lord, Lord Rennard, that costs are not expected to be significant.

The noble Baroness, Lady Thornton, asked about a number of issues on food, particularly sports foods. She rightly anticipated that I do not have an answer on that at the moment because, once again, it is up for negotiation. However, we are working closely with suppliers to identify the implications of alternative sourcing and substitution for their processes and menus and will be developing guidance in conjunction with other areas of nutrition, such as caterers and nutritional specialists, to ensure that the supply chain is prepared and continuous supply is maintained. Of course, that is part of business planning.

My noble friend Lady McIntosh asked when appointments will be made to the committee. I reassure her that appointment letters were issued to the specialist members and the chair on 6 March. As I said in my opening remarks, should the committee need to be set up, it is ready to go. It will be very important. As the noble Baroness, Lady Thornton, said, we do not know what the future holds tomorrow or next week, but we are ensuring that we have systems and processes in place to continue to deliver our current high safety standards.

My noble friend also asked why infant formula is not covered by the statutory instrument. I alluded to that in my opening remarks and said that the Government will work very closely with the industry. It will not be in place if we leave on the date that was envisaged, but we will of course mirror any future regulations as they come into play.

On a point of order, when the noble Baroness turns away from the microphone, we cannot hear what she is saying.

My apologies to the noble Lord. I was saying on infant formula, as I mentioned in my opening remarks, that if there are any changes, we will continue to mirror the regulations and, if there are any new initiatives, we will introduce new regulations in the usual way.

The noble Lord, Lord Rennard, and my noble friend Lady McIntosh also asked whether we would continue to be a member of EFSA. As I said, the nature of the UK’s future relationship with EFSA will be subject to negotiation with the EU. However, this SI provides for the appropriate expert committee or authority to assume EFSA’s function in a no-deal scenario, and this will guarantee certainty for business.

I hope that that answers most of the questions that noble Lords asked. I conclude by again reassuring all stakeholders that it is our policy intention to mirror the existing regulations as closely as possible. Guidance will be published shortly, and industry should be further reassured that stakeholders who we have consulted believe it covers all necessary aspects of the legislation and is fit for purpose from exit day. I commend the Motion.

Motion agreed.