The potential for a no deal Brexit is being looked squarely in the face by Defra who has considered how this might impact on the agriculture business in a series of 'no Brexit deal' notices. It is repeatedly stated that this is an 'unlikely' scenario however there are certain potential impacts, such as in import and export requirements and where there is reliance on EU based institutions, which are still an unknown quantity.
The key summary points and their impacts are considered below:
(Food labelling and protected names are reviewed separately here)
Farm Payment if there’s no Brexit deal
After 29 March 2019, if there’s ‘no deal’, all of the EU’s Common Agricultural Policy (CAP) payments will remain the same under the UK government’s funding guarantee; rules and processes will remain the same until Defra and the devolved administrations introduce new agriculture policies, either through the Agriculture Bill due to be introduced in the UK Parliament, or an Agriculture Bill in one or more of the devolved parliaments.
The government has pledged to continue to commit the same cash total in funds for farm support until the end of this parliament, expected (currently) in 2022: this includes all funding provided for farm support under both Pillar 1 and Pillar 2 of the current CAP. This commitment applies to the whole UK.
Health marks on meat, fish and dairy products if there’s no Brexit deal
Currently, production of meat, fish or dairy products, requires authorisation by a competent authority. Approval is under Regulation (EC) 853/2004 Article 4 (2).For example, in England, Wales, and Northern Ireland, the Food Standards Agency (FSA) is the competent authority that approves slaughterhouses, meat cutting plants, and game handling establishments.
Produce must carry an appropriate health or identification mark. These are requirements under Regulation 853/2004, Articles 4 and 5.
The health or identification mark must be oval in shape and state:
- that it’s produced in the EU
- the EU country it’s from
- your unique approval number
The above are described respectively in Regulation (EC) 854/2004, Annex I, Section I, Chapter III and Regulation (EC) 853/2004 Annex II.
The FSA is not planning to change approval numbers, but the health and identification marks would need to change after 29 March 2019 if there’s no Brexit deal.
The UK would not be entitled to use any abbreviation in the health and identification marks that implies membership of the EU. The form of the health and identification marks would therefore need to change. This is a requirement under Regulation (EC) 853/2004, Article 6 (1), Regulation (EC) 853/2004 Article 5 and Annex II and Regulation (EC) 854/2004 Annex I, Section I, Chapter III.
The FSA recently wrote to industry about what the new health and identification marks should look like.
The aim is stated to keep any change to the health and identification marks as simple as possible, minimise the impact on industry and ensure continued recognition by consumers in the UK, EU and countries that we export to outside the EU. The new health mark design would need to meet the EU’s requirements for a third country health and identification mark to ensure recognition by EU countries. As a minimum, the EU abbreviation would have to be removed from the health and identification marks.
The FSA in England and Wales, FSS in Scotland and DAERA, in conjunction with FSA in Northern Ireland, are taking steps to ensure that operational staff will be equipped with new health marks from 29 March 2019, so they can be deployed on this date if necessary.
Local authorities will be kept informed of developments regarding proposed changes to the health and identification marks.
A consultation period will give stakeholders the chance to comment and respond to Defra's proposals. After this, industry will be notified as soon as possible regarding the new health and identification marks.
If you export meat, fish or dairy products to the EU or other countries you would need to use the new marks.
If you don’t export, the FSA is currently considering proposals that may allow the continued use of the old identification marks on domestic produce for a limited time after 29 March. This would help to minimise the impact on industry by allowing businesses to use up old stocks of packaging.
Producing and processing organic food if there’s no Brexit deal
Currently, all food and feed sold as organic must be produced in accordance with standards set out in EU law. Food sold as organic must originate from businesses registered and approved by organic control bodies on the basis of a rigorous annual inspection. These standards apply to the production of food, animal feed, livestock (including bees and farmed fish) and any food products marketed as ‘organic’.
Six UK-based and two Ireland-based organic control bodies are currently approved by Defra to license individual organic operators. The control bodies oversee organic production and offer advice to ensure the integrity of organic products placed on the market.
Labels on food sold as ‘organic’ must indicate the organic control body with which the processor or packer is registered. The labels must, as a minimum, include a code number that denotes the approved control body. Products sold as organic must also carry the EU organic logo on the packaging.
Importers of organic food must register all consignments of organic produce via TRACES NT to ensure the traceability of organic food and feed.
If the UK leaves the EU in March 2019 without a deal some processes would remain the same:
- The UK would continue to maintain our high standards of food production and labelling.
- UK organic control bodies would be able to continue certifying UK organic operators for trade within the UK.
- The UK intends to continue to recognise those countries currently equivalent to the EU. Therefore, the import and export of organic goods to or from countries such as the USA, Canada, Japan and South Korea should only be minimally disrupted, if at all.
- It is anticipated the UK will continue to accept EU organic products in a ‘no deal’ scenario, but this will be at the UK’s discretion.
However, there are some things that would change in the event of a no deal because the EU will treat the UK as a third country:
- Logos on packaging would need to change. There would be a grace period to use up existing stock. UK organic operators would not be permitted to use the EU organic logo. UK organic operators may continue to use their control body’s logo. Defra has commissioned research on organic logos used worldwide which will provide evidence for developing any future UK logo.
- UK businesses would only be able to export to the EU if they were certified by an organic control body recognised and approved by the EU to operate in the UK. To do this, UK organic control bodies will need to apply to the European Commission for recognition.
- UK control bodies are not permitted to make these applications until the UK becomes a ‘third country’. Approval can take up to nine months so we are exploring alternative approaches that should speed up this process. As we are retaining EU regulation in UK law, we expect to negotiate an equivalency arrangement with the EU which will allow the free movement of organic goods between the EU and the UK. We will ask the European Commission to discuss these applications in advance of 29 March 2019.
Through the European Union (Withdrawal) Act 2018, existing EU regulations (Regulation 834/2007, Regulation 889/2008 and Regulation 1235/2008) will be rolled into UK law and continue to apply after Brexit. However, elements of this legislation - for example, references to the UK as a ‘Member State’ - will not be operable when applied in a UK-only context. Defra and the devolved administrations are working together to amend the legislation so it can function effectively.
The legislation will only be amended to the extent necessary to enable it to work in the UK when we have left the EU. There is no plan to introduce substantive policy changes. The certification and traceability of organic food and feed products will continue to be required. However, a new UK-owned imports traceability system would replace the current EU TRACES NT system to ensure the traceability of organic food and feed. More information on the replacement imports traceability system will be made available in the coming weeks.
Exporting animals and animal products if there’s no Brexit deal
To export animal products and live animals to countries outside the EU, exporters must currently apply for, and be issued with, an Export Health Certificate (EHC). This certificate is an official document, signed by a veterinarian or authorised signatory, and is specific to the commodity being exported and the destination country. The EHC proves the consignment complies with the quality and health standards of the destination country.
If the UK leaves the EU in March 2019 with no deal in place, EHCs would be required for exports of all animal products and live animals from the UK to the EU. Consignments would need to travel through a Border Inspection Post (BIP) within the EU. Requirements for trade to third countries outside the EU should not change. However changes would be required to the wording of the documentation, which would need to be agreed with the destination country, to reflect the fact the UK would no longer be a member of the EU. The EU would require the UK to be a listed third country. In the event of a ‘no deal’ scenario, the UK would apply for this status but cannot be certain of the EU response or its timing. Without listed status no exports to the EU could take place. Defra are confident however, that the UK meets the animal health requirements to secure listing, as other countries such as Australia and New Zealand have done so.
Transporters: UK transporters wishing to transport live animals in the EU would need to appoint a representative within an EU country and apply to their relevant government department to obtain a valid Transporter Authorisation, Certificate of Competence, Vehicle Approval Certificate and, where necessary, a Journey Log. Journey logs would need to be obtained from the EU country that is the initial point of entry into the EU for export. Exporters would need to present their transport documentation at a Border Inspection Post in the EU.
UK-issued transport documentation would remain valid for transport within the UK only.
Exporting GM food and animal feed products if there’s a no Brexit deal
Currently, EU GM food/feed authorisation holders, or those in the process of seeking authorisation, must be established in the EU or EEA (Regulation (EC) No 1829/2003, Article 4(6)). Businesses not based in the EU will need to designate a representative who is based in the EU or EEA. Additionally, for animal feed, the Commission advised that all businesses importing feed products from non-EU countries to the EU now require a representative within the EU or EEA.
if the UK leaves the EU in a ‘no deal’ scenario, UK exporters of feed products to the EU will require representation in the EU or EEA. EU countries will each have their own systems for this and businesses should consult with the relevant competent authority in the EU country for further advice on gaining recognition for their representative.
The requirement for non-EU country representation would apply to all feed products exported to the EU. This follows the European Commission’s announcement of a revised interpretation of Regulation (EC) 183/2005, Article 24. The Food Standards Agency is currently seeking clarity on this interpretation but companies should nevertheless anticipate this revised interpretation and consider designating a representative within the EU or the EEA.
UK businesses holding EU authorisations for GM food or feed, or for animal feed additives, will need to designate a representative established in the EU or EEA. They will need to provide details of the representative to the European Commission. This could be a branch of the business which is established in the EU or EEA or another business.
Changes to holder-specific authorisations for GM food or feed or for feed additives require amendments to EU legislation which would need to be in place by 29 March 2019. Businesses in the process of such changes would need to approach the European Commission without delay.
UK businesses acting in the role of a representative(s) for establishments in non-EU countries to enable them to export feed product to the EU, will need to inform the establishments they represent that they will no longer be able to act as their representative and advise them that they will need to appoint a representative based in an EU country or the EEA.
Regulating pesticides if there’s no Brexit deal
Plant Protection Products (PPPs) (also known as “pesticides”) are treatments that protect valuable plants such as crops against pests and diseases or prevent the growth of unwanted plants such as weeds.
In a no-deal scenario, the UK would establish an independent standalone PPP regime. The EU Withdrawal Act ensures that there will be no change to policy. All current active substance approvals, PPP authorisations, and Maximum Residue Levels (MRLs) in place on 29 March 2019 would remain valid in the UK after Brexit, so businesses could continue to trade and products would continue to be available. This would ensure continued levels of protection for human health and the environment, as well as making it straightforward for businesses to put products on the market, and ensuring UK businesses and individuals can continue to access a range of pesticides.
In the short-term, the UK regime will make changes from the EU regulatory framework only where they are required to operate in a UK-only context. In a ‘no deal’ scenario the UK would not be legally committed to medium or long-term regulatory alignment with the EU. Divergence from developing EU legislation would be possible in due course.
After Brexit, all applications for products to be authorised in the UK, and all active substances and MRLs would be considered under the national regime. The format of applications and basic data requirements would remain the same as under the current regime. Applications for EU approvals would need to be submitted separately to the EU for their consideration (more information on the EU regime can be found at https://ec.europa.eu/food/plant/pesticides_en ).
Breeding animals if there’s no Brexit deal
If the UK leaves the EU without a deal, the UK would become a 'third country' from March 2019. UK-recognised breed societies and operations involved in the trade and movement of purebred livestock and germinal products would no longer be recognised societies or operations in the EU.
A recognised UK breed society or breeding operation would no longer be automatically entitled to enter their pedigree breeding animals into an equivalent breeding book in the EU and would have no right to extend a breeding programme into the EU.
Existing EU legislation allows for trade with third country breed societies and operations. This provides for the European Commission to maintain a list of breeding bodies in third countries that meet certain requirements relating to equivalence of their breeding programmes and rules of procedure to those in the EU. In a ‘no deal’ scenario UK zootechnical businesses that meet these requirements would be treated as third country breeding bodies by the EU.
This would allow them to enter pedigree breeding animals into equivalent EU breeding books or registers as they can now, provided the animals are accompanied by a zootechnical certificate in accordance with the existing EU legislation. Defra will shortly contact Zootech stakeholders directly to discuss the steps they need to take to plan for March 2019, including providing any information needed to enable Defra to submit their applications for listing as third country breeding bodies to the Commission.
The arrangements for EU-recognised breed societies and operations operating in the UK would not change initially. They would continue to have access to the UK in the same way as they do now.
Plant variety rights and marketing of seed and propagating material if there’s no Brexit deal
EU legislation provides a framework for protection of plant variety rights in all 28 EU countries, largely superseding the UK’s longstanding national system. EU plant variety rights are managed by the Community Plant Variety Office (CPVO), an EU agency.
EU legislation for seed and propagating material assures the quality of material on the market. It applies mainly to food crops. For the main food and feed crops, the variety must first be registered on a National List. Officially controlled certification of seed and propagating material then takes place to assure identity and quality through testing and labelling. Variety registration in the UK is led by the Animal and Plant Health Agency (APHA), which coordinates almost all testing. Once a variety is registered on a National List, it is added to the EU’s ‘Common Catalogue’, allowing it to be marketed across the EU.
If the UK leaves the EU in March 2019 without a deal, EU plant variety rights granted up to that point, including those held by UK businesses, would continue to be recognised in the remaining 27 EU countries. Those rights would also automatically be recognised and given protection under UK legislation, without rights holders needing to take any action.
Where EU rights have been applied for, but not granted before 29 March 2019, an application for rights in the UK would need to be made to APHA, following the normal process for UK plant variety rights, and using the same priority date and DUS test.
For new varieties, breeders would need to make two applications, where currently they make one, to achieve the same geographic coverage, as separate protection would be required in the UK and the EU.
Marketing seed and propagating material in the EU: Varieties registered solely via UK National Listing would no longer be listed on the EU Common Catalogue and would not be marketable in the EU. UK certified seed and propagating material and UK DUS testing of plant varieties would no longer be accepted in the EU.
In order to market UK seed and propagating material in the EU, businesses would need to meet two requirements:
- The variety would need to be listed on the Common Catalogue - breeders would need to add them to the EU Common Catalogue through registration in an EU country.
- Seed would need to be certified, and the certification would have to be from the EU or from a third country recognised by the EU as equivalent for seed certification.
In the event of a no deal, the UK would apply to the EU to recognise its certification processes as equivalent, but we cannot guarantee this recognition would be in place at the point the UK leaves the EU. Approval can take a minimum of 12 months. Defra has stated there will be further communications on this in the coming months.
The UK has applied to join the international scheme for FRM that will allow the UK to apply to the EU for recognition of its certification process and marketing of FRM in the EU.
Marketing seed and propagating material in the UK: Varieties that are already registered on the EU Common Catalogue, but not on the UK list, are currently being added to the UK National List, which would allow them to be marketed in the UK. Any business wanting to add varieties to the National List in this way should contact APHA.
In a ‘no deal’ scenario, Defra intends to allow varieties on the EU Common Catalogue to be marketed in the UK for an interim period of two years after the UK leaves the EU, and to apply the same interim period to the marketing of EU certified seed and propagating material. After this, businesses would need to comply with new UK arrangements.
Manufacturing and marketing fertilisers if there’s no Brexit deal
Rules and requirements around manufacturing and marketing fertilisers in the UK are currently partially harmonised with the EU. This means there are two frameworks - a domestic framework and an EU framework - under which manufacturers can choose to market their products.
If the UK leaves the EU without a deal, the current domestic framework allowing fertilisers to be sold in the UK will remain in place, as it is separate from the EU framework.
Continuing both regimes in parallel will provide the greatest continuity in the short-term, and would be the same as the existing requirements. Over time, the regulatory framework would then be reviewed and rationalised. However, there would be some implications for material labelled ‘EC fertiliser’ in accordance with the EU Regulation and sold in the UK:
- there would be a suitable time-limited adjustment period during which ‘EC fertiliser’ could be placed on the UK market as now, to ensure continued supply. Government will consult with industry as to how long this time period needs to be, but it is envisaged to be no more than two years. This would mean UK or EU manufacturers would not have to change their labels immediately
- there would be an option to use a new ‘UK fertiliser’ label for fertilisers placed on the UK market after we leave, in accordance with the EU Regulation as converted into UK law
- after the end of the time-limited adjustment period, fertilisers placed on the UK market would need to comply with the current domestic regime or with the requirements of the new ‘UK fertiliser’ regime
Government will publish a new list of laboratories approved to test to the standards required for the new ‘UK fertiliser’ label.
UK manufacturers would still be able to manufacture their products as ‘EC fertilisers’ in accordance with the EU framework and UK companies could still export ‘EC fertilisers’ to the EU. However, they would need to ensure they comply with the EU Regulation, including the requirement that the manufacturer is established within the EU. Any necessary sampling or analysis must be carried out by a competent laboratory included in the Commission’s published list.
There would be no material change for users of fertilisers.
Commercial fishing if there’s no Brexit deal
Currently, the commercial catching of fish and marketing of fish and seafood, including the farming of fish, crustaceans, molluscs, aquatic plants and algae (aquaculture), is regulated by the European Union’s Common Fisheries Policy (CFP). The European Maritime and Fisheries Fund (EMFF) provides money, including industry grants, to member states for certain fisheries activities.
When Brexit takes place, the UK will formally leave the CFP and introduce our own fisheries policies. The government’s White Paper, Sustainable Fisheries for Future Generations, published on 4 July 2018, sets out objectives for a sustainable and profitable fishing industry. The White Paper also states the government’s intention to move away from the “relative stability” towards a fairer and more scientific method for quota allocation, regardless of exit scenario.
The EU Withdrawal Act 2018 will ensure EU law is transferred into UK law and continues to have effect. Defra, together with the Devolved Administrations, is currently preparing secondary legislation (under the Withdrawal Act) to ensure the law works in the UK after we leave.
The UK will assume the rights and obligations of an independent coastal state under the UN Convention on the Law of the Sea (UNCLOS) relating to our territorial waters (out to 12 nautical miles) and Exclusive Economic Zone (out to 200 nautical miles or the median line with other states). The UK will be responsible for managing natural marine resources in these areas, and be able to control and manage access to fish in UK waters. The UK will meet international obligations under UNCLOS to cooperate with other coastal states over the management of shared stocks.
Further detail on access to waters and ports is provided within the notice.
Upholding environmental standards if there’s no Brexit deal
Human health and the environment is currently protected by a large body of existing EU environmental law covering areas including air quality, waste and resources, water, wildlife and habitats, chemicals and pesticides.
The EU Withdrawal Act 2018 will ensure all existing EU environmental law continues to operate in UK law.
The UK government and devolved administrations will amend current legislation to correct references to EU legislation, transfer powers from EU institutions to domestic institutions and ensure international agreement obligations are met.
On 18 July 2018, the first Environment Bill in more than 20 years was announced. The Bill will apply to England and reserved matters and will incorporate a range of issues, including clean air. It builds on the 25 Year Environment Plan to achieve a ‘Green Brexit’ and ensure the environment can be cleaner and greener for future generations. The UK government will establish a new, independent statutory body to hold government to account on environmental standards in relation to England and reserved matters once Brexit takes place, alongside a statutory statement of environmental principles to guide future government policy making.
Defra is considering what interim measures may be necessary in a no deal scenario after 29 March 2019 and before the Environment Act is passed and comes into effect. The UK’s legal framework for enforcing domestic environmental legislation by UK regulatory bodies or court systems is unaffected by leaving the EU and continues to apply. Environmental targets currently covered by EU legislation are already covered in domestic legislation. Permits and licences issued by UK regulatory bodies will continue to apply as now.
For specific information concerning your business or for more detail please consult the Defra website.