Judge me by my cover - How product labelling is the most visible indicator for the UK’s divergence from EU regulation

Being weeks away from the end of the transition period, much has been said about the possible divergence in standards and policies we might see, which would impact businesses and consumers. Nothing may make this more obvious than the labels on our products, writes Sabine Tyldesley in her long read.

EU Divergence on standards

Soon after the Brexit vote, campaigners flagged the need to ensure consistently high standards and not let divergence become a race to the bottom. Divergence is a mathematical concept but in the context of Brexit, it has been used to explain the process of regulations becoming increasingly different over time, as the UK is no longer bound to adopt EU rules, thus gradually breaking away from the “harmonisation” of rules EU member states enjoy.

We have seen increasing worry - particularly concerning environmental standards, workers’ rights and food standards - that the UK’s ability to make its own rules will mean the adoption of inferior standards or a relaxation of strict rules for businesses which currently protect workers or consumers.

Prime Minister Boris Johnson reassured the nation in a speech earlier in the year that “we will not engage in some cut-throat race to the bottom. We are not leaving the EU to undermine European standards, we will not engage in any kind of dumping whether commercial, or social, or environmental, and don’t just listen to what I say or what we say, look at what we do.”

Taking back control

While businesses are getting ready for the transition period ending, there are several rule changes to be aware of, and for some areas there are new governance bodies enforcing compliance or setting new rules. For example, for specific foods there will be a new United Kingdom Nutrition and Health Claims Committee (UKNHCC) which will advise on the scientific evidence behind nutrition and health claim applications and give scientific opinions to the UK Government and relevant bodies.

More broadly, agri-food and plant product safety and nutrition claims will be governed by the Food Standards Authority and its devolved equivalents after Brexit, with the Department for Health and Social Care coordinating. This need for coordination is an important point to consider, as retained EU law means the devolved nations have powers to amend domestic food standards regulation independently of one another. Practically, this could mean – although very unlikely – Scotland, for example, allowing different foods into its market to England.

Divergence within the UK

The way forward for food standards has been mapped out by the Joint Ministerial Committee (JMC), the main mechanism for inter-governmental cooperation which has a sub-committee working specifically on post Brexit UK-wide legislative frameworks. This includes the Food and Feed Safety and Hygiene (FFSH) common framework – currently in consultation stage.

A September update on the FFSH confirmed that “it is likely that across Great Britain, common approaches to food and feed safety and hygiene policy will normally be reached, thereby minimising regulatory complexity, maintaining consumer and business confidence and limiting scope for confusion. However, the FFSH framework will not guarantee that common outcomes on all decisions will be reached”.

This means after Brexit, divergence can now not only happen between the EU and the UK but also between the devolved nations within the United Kingdom. However, the Internal Market Bill currently going through Parliament ensures mutual recognition of standards across all four nations and prevents discrimination against products made in any other part of the UK.

Visible changes to products

The UK’s new governance regime may mean changes to product regulations which could regulate the contents and production of agri-food items as well as make it visibly different compared to the same product being sold on the continent.

Packaging and labelling is the ‘cover of the book’ by which consumers judge content such as composition, nutritional value and health claims, allergens or dietary requirements, and use-by dates but also things like recyclability, origin, farming methods (organic certifications, fair trading) and product endorsements.

Last week, Environment Secretary George Eustice launched his Agricultural Transition Plan 2021 to 2024 which foresees a new system and farming policy for England only from 1 January 2021. This will among other things put in place a system that rewards farmers and land managers for sustainable farming practices.

However it interestingly also envisages “Higher Welfare English Food Labels”. This could see food labelled specifically in shops to give consumers information about the higher legal standards English farmers would have adhered to in the production of their food-stuffs. A consultation on the so-called welfare labelling is being prepared but has not been published yet.

Front of pack nutrition labels (FOPNL)

Meanwhile, the Government’s ambition to tackle obesity also prompted thinking on changes to product labels to encourage healthier behaviour and disincentivise unhealthy consumption. Soon, shoppers may see differences in the way products are labelled which – it is hoped – will help consumers make more informed decisions.

Last month, a Government consultation on updating front-of-pack labelling closed which envisages a change in FOPNL as was proposed as part of a package of actions in the Government’s Tackling Obesity strategy published this summer.

The current ‘Traffic Light’ system using the colour code to signify low, medium and high amounts of energy (kj/kcal), fat, saturated fat, sugars and salt in food products has been in force since 2013. 

The WHO and the EU have been working on harmonising nutritional value propositions for several years and made a proposal for mandatory EU-wide front-of-pack nutrition labelling by 2022. This envisages the use of a NutriScore instead. Put simply, NutriScore is a five point colour graded indicator and acts as a summary label for the product. It gives less specific information than the traffic light system by omitting the calorie information and recommended intake percentages but in return it gives a holistic indicator of a products nutritional value, rather than its impact on the waistline.

The UK Government is therefore not just making a decision about how to inform its consumers of the value of food products but are also deciding whether to have a different label in the UK compared to labels which may be made mandatory across the EU.

Product safety mark

Finally, another change consumers might see is the introduction of a UK conformity mark replacing the EU’s conformity CE marking for product safety. To date, regulation of product safety, and weights and measures were based on EU law.

Amendments to the Regulations on Product Safety and measurements after EU exit however made a change so that products should be marked with a new UK conformity mark, UKCA. The CE marking will remain recognised for 12 months, before the new UKCA mark is made mandatory from January 2022. A new UK(NI) conformity mark will meanwhile allow a product to be sold in Northern Ireland after it has been tested by an accredited body in Great Britain.

Conclusions

These are three clear examples of where consumers may quickly and visibly experience divergence first hand.

High agriculture and welfare standards are also arguably welcome and if labelled as such will surely better inform consumers. Business groups have however already argued that the additional cost burden will hamper their competitiveness and any and all design and labelling changes could be burdensome and have costly production implications.

With 28 days to go until the end of the transition period, we have a future in sight in which the UK wants to trade more, not less. With that in mind, the Government will need to decide how visible they wish to make the UK’s newfound sovereignty without making the UK market the ‘odd one out’ in a world that is increasingly harmonising instead of diverging to break down barriers to trade.

Photo by Franki Chamaki on Unsplash