Is the re-set agreed?

Not yet. In political terms, the UK and EU have reached a common understanding of what a new Sanitary and Phytosanitary (SPS) agreement might look like. Officials are now negotiating the detail of the agreement. If those negotiations conclude successfully, the final text of the SPS agreement will be contained in a treaty.

In the UK, treaties must be approved by the Westminster Parliament before they can be ratified. And the contents of a treaty – which is international law – only becomes part of the domestic law of the UK once an Act of the Westminster Parliament makes it so. A Bill intended to give effect to the terms of an SPS agreement will amount to an important constitutional change for the UK and we can expect its passage through the House of Commons and the House of Lords to be an interesting, and probably controversial, one.

What will a final agreement contain?

While what emerges from the UK-EU negotiating rounds should reflect the broad aims of the political agreement, we can expect the give-and-take of negotiation to contort and stretch what the politicians thought they had agreed. It is likely that compromises on both sides will produce requirements which might be somewhat awkward in places and require food businesses to alter their processes to reflect a position taken in negotiations whose aim might not be immediately apparent but is usually reached for good reason.

The aim, certainly, will be to secure free movement of animals, animal products, plants and plant products between the UK and the EU without the plethora of certificates and controls -and the resulting costs and delays – which presently apply to these movements.

How will the UK and EU re-align their Food Law?

The UK will need to pass an Act of the Westminster Parliament to align Food Law in Great Britain (England, Wales, and Scotland) with EU Food Law once again. The precise way in which the Act will do this remains to be seen, but we can expect it to contain a mix of detailed provisions tying Great Britain to certain EU laws immediately (with a transition period), and other provisions which give powers to ministers, including ministers in the devolved nations of Scotland and Wales, to do so later, by passing new regulations in specific areas such as food additives or food labelling. Northern Ireland is already aligned with EU Food Law through the Windsor Framework and that is not expected to change in any material way.

We know from the political agreement that the UK and EU intend, subject to certain exceptions, that UK and EU Food Law will be dynamically aligned. Put simply, this means that, whenever the EU changes or updates its Food Law, UK Food law will automatically change to follow suit.

What might the EU want?

To the extent that there is any conflict between EU Food Law and that of the UK, we can expect the EU to insist that EU law will prevail over UK law. The EU will want this to be the case whether or not the UK Food Law was adopted before or after the SPS agreement takes effect.

We can also expect the EU to insist that, where any question about the interpretation of EU Food Law arises in the UK, the ultimate authority as to what EU Food Law means is the Court of Justice of the European Union (CJEU).

The EU will also want to ensure that the UK’s ability to prevent EU food and animal feed from being moved into, and sold, in the UK is extremely limited, with perhaps only a very limited right to temporarily suspend imports from the EU in the case of serious risk to human or animal health.

Money will matter, too. If the UK is to regain its access to some of the EU’s agencies, systems, and databases – for instance the Rapid Alert System for Food and Feed (RASFF) – the EU will want a UK contribution to the cost of running those things.

What might the UK want?

At its most basic, the UK will want to ensure that it regains full and unconditional access to the valuable EU export market for food without any friction at the border such as export health certificates or physical inspections.

The UK will also be keen to ensure that, so far as new or amended EU Food Law is concerned, it has a way of “shaping” that law, accepting that the UK will no longer be a full member of the EU and able to participate in decision-making through the EU’s institutions. Closely associated with this will be the UK’s wish to ensure that it is given as much advance notice of new EU Food Law as possible, so that UK food businesses have as much time to prepare for changes as their European counterparts.

The UK will, no doubt, press strongly for access to valuable EU systems such as RASSF, and to share scientific and other insights freely with policymakers in the EU, enriching the quality of information for the benefit of all parties.

What ‘legal plumbing’ is needed?

The way in which the UK gives legal effect to alignment with EU Food Law is likely to be driven by three main considerations: 1) the need to make EU food law directly effective in the UK (in other words, making EU law directly available and binding in UK courts); 2) the need to make EU law superior to domestic UK law; and 3) the need to dynamically align with EU Food Law (i.e. allowing EU Food Law to update automatically without the UK having to amend its own law each time EU Food Law changes).

These factors are likely to create a need for an Act of Parliament which opens a ‘legal door’, allowing EU Food Law to ‘flow into’ the UK domestic legal system and give it special status. This was, in fact, the way in which the UK gave effect to EU law when it was an EU member state.

As EU Law does not contain specific enforcement measures (such as civil and criminal penalties), the UK will need to make domestic laws which provide for the enforcement of EU Food Law before the domestic courts.

In a related way, the UK will need to provide that the CJEU will be accessible to UK citizens and the domestic courts in order that its role as final arbiter of the meaning of EU Law is secured.

There will be some complicated issues to resolve. These will include whether the devolved nations of Scotland and Wales will have any say over how the Act will work as well as the extent to which important legislation passed since Brexit – such as the Genetic Technology (Precision Breeding) Act 2023 – needs to be amended or repealed. These issues will be politically tricky.

Food and animal feed policy is devolved in the UK, and the devolved nations will want to retain maximum influence over how the re-set affects their devolved powers. Likewise, repealing legislation which has been passed by the UK to reflect the latest biotechnology may be seen as scientifically and economically regressive by many in the food and feed sector.

How long will food businesses get to prepare?

This is tricky. Like jumping on the merry-go-round while it is spinning, there is a possibility that certain EU Food Laws will apply in the UK with little advance notice. However, with some effort, the UK should be able to agree a suitable transition period during which food businesses could ready themselves for re-alignment.

Beyond the challenges of actual legal re-alignment, practical difficulties are already making themselves felt as the UK begins to cater for expected changes in its Food Law arrangements.

As an example, the EU’s ban on the use of Bisphenol A in food packaging was adopted by the EU on 19 December 2024, giving EU businesses until 20 July 2026 to phase-out the use of the chemical. The UK, which has recently consulted on adopting a similar ban, proposes to implement the legislation to mirror the EU’s timetable but without the lead-time which EU businesses enjoyed. While this neatly anticipates alignment, it pays little heed to the need of UK businesses to have a reasonable period of warning for the implementation of what will be a significant packaging change.

Curiously, even in cases where earlier alignment with EU Food Law would have immediate deregulatory benefits for UK food businesses, ministers are ‘putting off’ making changes to UK Food Law pending the implementation of the SPS agreement. So much is clear from the Government’s response to recent consultations on relaxing controls over the use of certain processed animal proteins in animal feed to bring these controls into line with those in the EU, where the Government has indicated that the change will now be made as part of the implementation of the SPS agreement.

What should food businesses do now?

If you’re a food business, we recommend that you take stock of all food law which applies to you – perhaps through a regulatory audit – and identify whether, for each regulatory provision which affects you, there has been divergence between the UK and EU in the period since Brexit.

You may need to changes your recipes, processes, wrapping and packaging to get ready for for EU Food Law applying in the UK once again, and the sooner work begins on making these changes, the easier life is likely to be.

How can Walker Morris support you?

We can help you assess your readiness for re-alignment with EU Food Law. We have food law experts who can work with your quality and technical teams to help map your products, processing and packaging against the relevant legal requirements and deliver proportionate and economical compliance with EU requirements.

We are always pleased to discuss our food law services, without obligation, and to show you how we can deliver additional value – above and beyond pure technical compliance – to your food business.

Please get in touch with Chris McGarvey for more information at any time.