Food Additives, Flavourings, Enzymes and Extraction Solvents (Amendment etc.) (EU Exit) Regulations 2019

Baroness Wheeler Excerpts

Tuesday 9th April 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, I thank noble Lords for their consideration of these regulations. The Government’s priority is to ensure that the high standards of food safety and consumer protection we enjoy in this country are maintained when the UK leaves the European Union. This instrument forms part of our preparations for a functioning statute book on exit.

Food additives, flavourings, enzymes and extraction solvents are important substances referred to collectively as “food improvement agents” which are used in a wide variety of everyday foods. These substances perform technological functions in or on food during its production or storage. Examples include preservatives, which are highly effective in protecting consumers from dangerous pathogens and help to provide a decent shelf life of products for consumers. Other substances are used to improve the taste, texture, and appearance of food. Common examples are artificial sweeteners, emulsifiers and flavourings added to food where they are considered necessary.

This instrument is made under the powers in the European Union (Withdrawal) Act 2018 to make the minimum necessary amendments to retained legislation that governs the use of food improvement agents and corrects deficiencies in those regulations. I wish to make clear that no policy changes are being made through this instrument, and neither is there any intention to do so at the present time. The instrument was due to be debated on Tuesday 19 March alongside four other instruments on regulated products in food. Minor drafting errors were identified which have now been rectified.

Currently, the European Commission holds a range of powers and functions under the EU legislation to enable new substances to come on to the market, to amend current conditions of use and purity criteria and to remove substances from the permitted lists. This instrument transfers these powers from the Commission to Ministers in England, Scotland, Wales and the devolved authority in Northern Ireland. It also transfers responsibility for risk assessment from the European Food Safety Authority, EFSA, to the UK “food safety authority”. This will be the Food Standards Agency in England, Wales and Northern Ireland and Food Standards Scotland in Scotland, which have a close working relationship.

Risk assessment and the oversight of food safety controls will be essential to ensure that food remains safe, whether imported or produced in the UK. The Food Standards Agency and Food Standards Scotland are responsible for protecting public health in relation to food and will continue to be independent science and evidence-based government departments. These functions will be delivered through the increased risk assessment capacity that has already been put in place. This instrument will ensure that the controls contained in 11 retained regulations governing food improvement agents continue to function effectively after exit day. All existing food improvement agents permitted for use in 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. There will be no change in how food businesses are regulated or managed.

These regulations will ensure a robust system of controls that will also underpin UK businesses’ ability to trade both domestically and internationally. This will ensure continuity and clarity for UK food businesses and those exporting their food products to the UK, while maintaining existing levels of public health protection and food safety. There are no changes to the authorisation process for new substances, except that the roles of the European Commission and EFSA will be replaced by the relevant UK entities. To support industry with these changes, the Food Standards Agency intends to publish detailed guidance on the UK authorisation processes. Scientific data requirements in support of applications will remain the same, so the same package of data can be submitted to the UK and the EU, avoiding any unnecessary additional burden.

It is also important to note that the devolved Administrations have provided their consent for these instruments. Furthermore, we have engaged positively with the devolved Administrations throughout the development of these instruments. This ongoing engagement has been warmly welcomed. A full public consultation indicated support for the proposed approach to retained EU law for food and feed safety and hygiene. These instruments therefore constitute a necessary measure to ensure the continuation of effective food safety and public health controls. I beg to move.

[Baroness Wheeler (Lab)]

I thank the Minister for introducing these important regulations dealing with food improvement agents such as preservatives, anti-oxidants, flavourings, enzymes and extraction solvents. As the Minister explained, this is the second version of the regulations, which have been re-presented to comply with requirements in drafting, elucidation and compliance with proper legislative practice identified by the Joint Committee on Statutory Instruments, which led to their hasty withdrawal and subsequent reissue. The Ministers, both today and in the Commons, described the faults in the original draft as minor, but it is important to underline for the record that the committee made some important stipulations now contained in the draft which are welcome because they assist with the clarity needed to ensure compatibility with other related regulations.

We recognise that this and the related SIs considered so far are necessary to ensure we retain the high-level principles underpinning the day-to-day functioning of the UK’s food safety legal framework. Ensuring continuity for business and public health bodies is in the vital interests of the public. However, in discussions across the range of food safety-related SIs from either the Department of Health or Defra, we have repeatedly raised our concerns about the UK’s preparedness for additional responsibilities in terms of resources and staffing levels in the Food Standards Agency, Food Standards Scotland and the related bodies that are to assume wide-ranging responsibilities from the EU after Brexit.

Let us remember that, between 2010 and 2017, the FSA saw its budget cut by 26%—nearly £30 million—leaving it resourced, in its own words,

“just to provide a basic statutory service”,

without contingency funds and with service delivery likely to be seriously compromised if any further cuts take place. Can the Minister explain how she envisages that an organisation that has been run down in this way so as to be able to carry out just its statutory obligations will, in the short or medium term after Brexit, be able to ratchet up to assume the key responsibilities currently undertaken by the European Food Safety Authority?

We have been told by the Government that both the FSA and the FSS will deliver the widened responsibility for protecting public health in relation to food through,

“an increased risk assessment capacity”,—[Official Report, Commons, Fifth Delegated Legislation Committee, 1/4/19; col. 5.]

and that additional staff are being recruited to deliver risk assessment and risk management functions from day one of Brexit. Can the Minister tell the House how many additional staff have been recruited, when they started work and what roles they are currently undertaking? What additional funds are being provided to the FSA and FSS to meet these costs, and what transitional management funding is being provided to support their taking on new and wider functions?

We are also concerned about the key issues raised by local authorities during the consultation with stakeholders on the SI, on how extra responsibilities they are taking on will be resourced—particularly if further responsibilities are identified in the course of ongoing negotiations. These so far remain unanswered by the Government. We know just how cash strapped local authorities are, so will the Minister confirm that the additional costs will be on a full cost recovery basis and that any additional financial burden that arises through ongoing negotiations will be funded, especially in the event of a no-deal Brexit?

The Explanatory Memorandum for the SI, in paragraph 2.7, expresses the Government’s confidence—which the Minister also expressed this afternoon—that,

“These changes will ensure that the retained legislation remains operable and enforceable within the UK regulatory framework without compromising existing levels of public health protection and food safety”.


Paragraph 2.9 reassures consumers that,

“existing levels of public health protection and food safety are being maintained”.

It is difficult to see how such supreme confidence can be justified in the light of the scale and extent of the changes that will take place in the food industry and related key industries. Can the Minister advise what steps have been taken on a cross-departmental basis to monitor implementation of the new structures, particularly in the transitional phase?

On the key EFSA re-evaluation programme of approved food additives, can the Minister please explain in more detail why the EU regulation is being revoked and it is not thought necessary to retain this important legislation for the UK? Why is a UK-wide re-evaluation programme not needed? While the EU regulation placing a duty on producers or users of a food additive to immediately notify the UK of any new scientific or technological information that may affect the safety assessment of a food additive is being retained, is the Minister confident that the UK will have sufficient safeguards and expertise in the FSA and FSS to ensure that food additives on the UK’s authorised list are kept under review on an ongoing basis? How will we ensure that we continue to keep up to date with and implement recommendations from international assessment bodies such as EFSA and the Joint FAO/World Health Organization Expert Committee on Food Additives?

The Explanatory Memorandum, at paragraph 12, states that the impact of the SI on business, charities or voluntary organisations is “minimal” and does not impact on the day-to-day workload of the small and micro-businesses that make up over 90% of the food industry sector. We are told that only one-off familiarisation costs resulting from the legislative changes are involved; and there is no impact assessment, because the SI has been assessed by the FSA as being below the de minimis threshold expenditure requiring an assessment to be produced. Again, the scale and extent of the proposed change makes these statements seem somewhat complacent. Can the Minister assure the House that the situation will be kept under close review so that swift action can be taken if the burden of introducing and maintaining the new arrangements leads to unsustainable costs for small businesses or voluntary organisations?

Finally, on the consultation exercise undertaken by the FSA on the EU law for food and feed and hygiene, the Minister in the Commons was quick to reassure my honourable friend Sharon Hodgson that the food industry had been fully consulted and understands the minimal impact the changes will have and “is satisfied”. Also, that of the 50 responses received,

“some 82% supported the Government’s approach”.—[Official Report, Commons, Fifth Delegated Legislation Committee, 1/4/19; col. 9.]

However, the Explanatory Memorandum, at paragraph 10.2, says that of the respondents,

“82% supported or did not agree with the proposed approach being outlined by the Food Standards Agency”.

Can the Minister clarify this? What actions are being taken to ensure that stakeholders’ concerns expressed in the consultation that changes will be clearly communicated with urgency and sufficient lead-in times are addressed?