FSA says claims that food safety penalties will be weakened post-Brexit are 'wrong'

Claims that Brexit preparations are weakening the UK’s food safety penalty system 'risks creating public alarm when none is warranted', according to the Food Standards Agency.

The FSA said it wanted to reassure enforcement officers that maintaining high standards of food and feed safety is its top priority and that 'penalties for wrongdoing are not being weakened'.

Concerns were raised earlier this month by CIEH, Sustain (the alliance for better food and farming), environmental campaign group ClientEarth and the Public Law Project charity.

Fears centred around the removal of the requirement that penalties be “effective, proportionate, and dissuasive” while the EU law was being transposed into UK legislation. Up until this point, food law has been drafted around this framework, and with these principles in mind.

The government has been able to transpose these laws unusually rapidly for Brexit-day using 'Henry VIII' powers without the typical public and parliamentary scrutiny, and criticism was also raised around lack of transparency as the changes were not included in the explanatory notes.

CIEH has raised these issues the FSA directly, as well as other differences it had noted such as: the removal of all reference to the European Food Safety Authority and the rapid alert system; and extra provisions around relaxing food traceability.

FSA director of strategy legal and governance Rod Ainsworth has written to EHN Extra (his letter is published below in full) in response to just one of the multiple concerns raised, regarding the removal of the requirement for penalties to be “effective, proportionate, and dissuasive”.

He said: “The wording reflects the fact that the enforcement of EU law takes different forms in different member states. For this reason, EU law does not prescribe the precise forms which enforcement must take. Instead it stipulates the necessary effect, which those enforcement measures must have.

“This stipulation will become redundant in the UK when there is no longer a separation between EU law and national law.

“Penalties for wrongdoing are not being weakened as a result. The detailed penalties and enforcement mechanisms relating to food and feed law, which include civil and criminal sanctions, will remain in full force once the UK leaves the EU.”

On the issue of the removal of the phrase “effective, proportionate, and dissuasive” Client Earth’s UK environment lead Tom West said: “It doesn’t weaken any government body’s ability to enforce standards etc, but it does weaken (and perhaps even remove) their obligation to do so.

“The provision has its history in EU law, but it would not be meaningless in standalone domestic law. It’s a requirement that sets out the necessary effect, which penalties must have.

“Penalties themselves are not being weakened (yet). But the possibility of weaker penalties regimes now becomes more apparent. Given that penalties regimes are already too lax in a number of areas, this may threaten the effectiveness of environmental laws.”

FSA response to EHN Extra

Dear editor,

Throughout the Food Standards Agency’s preparations for EU Exit our top priority has been to maintain the UK’s high standards of food and feed safety. Recent coverage in EHN suggesting that the EU legislation we are currently transferring into UK law, to prepare for a ‘no deal’, will have weaker enforcement provisions for food safety is wrong. It risks creating public alarm when none is warranted.

This story focussed on the current requirement under EU law for Member States to ensure “effective, dissuasive and proportionate penalties”. This wording does not appear in statutory instruments that the FSA has laid before Parliament but, contrary to the concerns raised in the article, this does not weaken our ability to enforce food and feed safety standards.

These concerns are based on a fundamental misunderstanding of the purpose and effect of those particular provisions of EU law. The wording reflects the fact that the enforcement of EU law takes different forms in different Member States. For this reason, EU law does not prescribe the precise forms which enforcement must take. Instead it stipulates the necessary effect, which those enforcement measures must have.

This stipulation will become redundant in the UK when there is no longer a separation between EU law and national law. Penalties for wrongdoing are not being weakened as a result. The detailed penalties and enforcement mechanisms relating to food and feed law, which include civil and criminal sanctions, will remain in full force once the UK leaves the EU.

I would like to reassure enforcement officers that the FSA has been working hard to ensure they have the tools they need to continue their vital work once we leave the EU. This week the FSA Board confirmed that the FSA had delivered a full and complete replacement regulatory regime for food and feed safety, and that the department is prepared for the immediate demands of EU Exit. This continues to be a challenging time for all of us but we share your commitment to continue enforcing the highest possible standards of food and feed safety.

Rod Ainsworth
Director of Strategy Legal and Governance
Food Standards Agency