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Food and Feed Safety andHygiene CommonFrameworkProvisional Framework Outline Agreement and ConcordatPresented to Parliamentby the Secretary of State for Health and Social Careby Command of Her MajestyNovember 2020CP 321

Food and Feed Safety andHygiene CommonFrameworkProvisional Framework Outline Agreement and ConcordatPresented to Parliamentby the Secretary of State for Health and Social Careby Command of Her MajestyNovember 2020

Crown copyright 2020This publication is licensed under the terms of the Open Government Licence v3.0except where otherwise stated. To view this licence,visit e/version/3.Where we have identified any third party copyright information you will need to obtainpermission from the copyright holders concerned.This publication is available at www.gov.uk/official-documents.Any enquiries regarding this publication should be sent to us at the Food StandardsAgency, Clive House, 70 Petty France, London, SW1H 9EXISBN 978-1-5286-2222-6CCS112048730810/20Printed on paper containing 75% recycled fibre content minimumPrinted in the UK by the APS Group on behalf of the Controller of Her Majesty’sStationery Office

FOOD AND FEED SAFETY AND HYGIENE COMMON FRAMEWORKPROVISIONAL FRAMEWORK OUTLINE AGREEMENTPART 1: CONTEXT1Policy areaFood and Feed Safety and Hygiene Law1.1Food and feed safety and hygiene (FFSH) law is set out in retained European Unionregulations which set out an overarching and coherent framework for thedevelopment of food and feed legislation and lay down principles, requirements andprocedures that underpin decision-making in matters of food and feed safety. Thislegislation covers all stages of food and feed production, including risk analysis; foodsafety labelling, distribution, incident handling, and food and feed law enforcement(official controls).2Definitions2.1A full list of definitions can be found in Annex 3.3ScopeFood and Feed Safety and Hygiene Law - intersect with devolved competence andexisting arrangementsFFSH is a devolved policy area. This is set out as follows in the devolution settlements foreach nation:3.1Schedule 5 of the Scotland Act 1998 sets out those matters which are reserved to theUK Parliament. Any area not listed in Schedule 5 is devolved to the ScottishParliament. While ‘consumer protection’ and ‘import and export control’ areconsidered reserved matters, exceptions are included for food and feed safety (seesection C5 and C7), meaning FFSH is a fully devolved matter.3.2Schedule 7A to the Government of Wales Act 2006 sets out those matters which arereserved to the UK Parliament. Any area not listed in Schedule 7A is devolved to theWelsh Parliament. While ‘consumer protection’ and ‘import and export control’ areconsidered reserved matters, exceptions are included for food and feed safety (seesection C5 and C6), meaning FFSH is a fully devolved matter.3.3Schedule 2 of the Northern Ireland Act 1998 sets out ‘excepted matters’ (matters ofnational importance on which the NI Assembly does not have competence tolegislate), and Schedule 3 of the Northern Ireland Act sets out which matters fall intothe ‘reserved’ category. Anything that is not explicitly reserved or excepted inSchedules 2 or 3 is deemed to be devolved and the NI Assembly has full legislativecompetence. While ‘technical standards and requirements in relation to products’ arereserved under Schedule 3, there is an exception for ‘standards and requirements in1

relation to food, agricultural or horticultural produce, fish or fish products, seeds,animal feeding stuffs, fertilisers or pesticides’ meaning FFSH is a fully devolvedmatter.3.4While FFSH policy areas are devolved matters, international trade is reserved,creating an area of overlapping interests where UK trade negotiations andimplementation may intersect with aspects of devolved policy areas, such as FFSH.Though FFSH is devolved, it remains the responsibility of the UK government toensure the UK complies with its international trading obligations. For example, theWorld Trade Organisation Sanitary and Phytosanitary Agreement (WTO SPSAgreement, see Annex 3 for ’Definitions’) Article 13 permits Members to devolve theimplementation of SPS to non-central government bodies, but explicitly states“Members are fully responsible under this Agreement for the observance of allobligations set forth herein”. Thus, UK Government will be held to account on behalfof all devolved nations for this specific function.3.5The Food Standards Agency (FSA) has responsibility at central government level forthe main body of feed and food safety law in England, Wales and Northern Ireland.Food Standards Scotland (FSS) has similar competence in Scotland. The FSA andFSS have an MoU in place which sets out how the organisations work together indetail. Both the FSA and FSS are responsible for developing and implementingpolicy related to general food and feed hygiene and traceability. This includes theprotection of public health via import controls, labelling related to food safety (such asallergens), biological and chemical safety, and biotechnology.3.6In England, Wales and Northern Ireland, the FSA (in conjunction with local authoritieswhich carry out certain functions) is responsible for monitoring, verifying complianceand enforcing the requirements of FFSH law. In Wales and Northern Ireland the FSAalso has responsibility for food compositional standards and labelling. In NorthernIreland, the FSA additionally has responsibility for nutrition. The ‘food compositionalstandards and labelling’ and ‘nutrition labelling, composition and standards frameworkpolicy areas are being managed through separate frameworks which are led by Defraand DHSC respectively. FSS undertakes all such controls in Scotland. Unlike theFSA in Wales and Northern Ireland (which are part of the FSA), FSS is a separateand fully devolved body.3.7The detailed explanation of the specific scope of the FFSH Framework is set out insection 4.7 - 4.17.How the European Union framework operated3.8Until the end of the transition period, the majority of FFSH law was harmonised atEuropean Union level, relying on European Union processes and institutions to carryout most risk assessments, risk management decisions and develop and passlegislation. Much of the FSA’s work at the European Union level previously took placethrough ‘comitology’ procedures. In policy areas such as FFSH, where uniformconditions for implementation were often needed, the European Commission wouldadopt ‘Implementing Acts’ or ‘Delegated Acts’ to supplement or amend certain parts2

of European Union regulations. Before doing so, standing (‘comitology’) committees,in which all Member States would be represented, consulted and voted on proposals.In addition, expert working groups would be consulted carefully before a proposalwas put to the standing committee. Commission proposals voted on in standingcommittees are disclosed to the European Union Parliament and European UnionCouncil (and may or may not be discussed in their committees). Once a decision hasbeen agreed at standing committee, the European Union Parliament and EuropeanUnion Council have the right of scrutiny and may or may not discuss the matter intheir committees). It should be noted that prior to the end of the transition period, asignificant number of risk management decisions, such as decisions on enforcementand incident handling, were also taken at national level. Decisions in these areas areconsidered outside the scope of the FFSH Framework.3.9The Standing Committee on Plants, Animals, Food and Feed (SCoPAFF) is the keycommittee of relevance for FFSH. The FSA represented the UK at 6 sections of theSCoPAFF committee on food and feed safety matters and in technical discussions at16 working groups that feed into the SCoPAFF standing committees. In representingthe UK government on the standing committees, the FSA worked collaboratively withdevolved nations and other departments to establish UK positions on proposals, andconsulted Ministers and other interested parties as appropriate. Legislative decisionswere taken through comitology procedures on a frequent basis: in 2016 there were 76decisions taken in FFSH policy areas.3.10Where changes were proposed to the broader principles of legislation (or new piecesof legislation are put forward), the FSA represented the UK in the European Union’s‘Ordinary Legislative Procedure’, whereby the Commission would submit a legislativeproposal for the European Parliament and European Council to amend and adopt.The FSA fed into Council working parties and Parliament committees (convened toinform the Council/ Parliament) as and when a new law (or amendment to the broadprinciples of a law) was made that fell within the remit of FFSH policy areas.3.11For significant components of European Union food law (particularly in relation toregulated products), the European Union framework relied largely on the EuropeanFood Safety Authority (EFSA) for independent scientific advice and risk assessments.Most of EFSA’s work is undertaken in response to requests for scientific advice fromthe European Commission, the European Parliament and European Union MemberStates. While some risk assessments were carried out already at UK level, the end ofthe transition period will require increased capacity for domestic risk assessments, aswell as governance processes for how these are carried out across the UK. The UKhas expanded its risk assessment capacity accordingly.Retained European Union rules and what they achieve (See Annex 1 and 2 for furtherdetail)3.12FFSH can be broken down into four broad policy areas, all of which fall withindevolved competence and were formerly largely harmonised at European Unionlevel, and have been transferred onto the UK statue book as retained EuropeanUnion law. The exception to this was the limited scope provided for the adoption of3

national measures to achieve common outcomes where these are in-keeping with theprinciple of subsidiarity. The four broad policy areas within the scope of EuropeanUnion FFSH legislation are: 3.13general food law and hygienefood safety standardsofficial controls for food and feedpublic health controls on imported foodThe main objectives of food and feed law are to: guarantee a high level of protection of human life and health and the protection ofconsumers’ interests. ensure free movement of food and feed manufactured and marketed in theEuropean Union, in accordance with the General Food Law Regulation; and facilitate global trade of safe feed and safe, wholesome food by taking into accountinternational standards and agreements when developing the European Unionlegislation, except where this might undermine the high level of consumer protectionpursued by the European Union.International obligations3.14The Codex Alimentarius (Codex) is a series of voluntary food standards and relatedtexts, which aim to provide a high level of consumer protection and fair practice in theinternational trade of food and agricultural products. The Codex AlimentariusCommission (CAC) is recognised in the relevant WTO agreements as theinternational body able to provide these guarantees: in the event of a trade dispute,Codex standards would become accepted reference documents for settlement. TheCAC is responsible for the development of Codex standards and related texts. Defraacts as the national contact point for the UK in Codex, though the FSA takes the leadin many of the vertical committees dealing with food hygiene, food additives and foodcontaminants (which draft standards, codes of practice and other guidance). The FSAalready undertakes a considerable amount of international engagement beyond theEuropean Union, reflecting the increasingly global nature of food supply systems andof international regulatory standards; plans are also in train to allow for an increase inthis activity.3.15Having left the European Union, the UK has taken up new obligations as anindependent WTO member at the WTO SPS committee. The SPS committee waspreviously attended by European Union experts on behalf of the UK. Crossdepartmental processes have been developed by Defra (with participation from theFSA) to ensure we fulfil our new obligations, including consulting stakeholders onSPS measures, notifying the committee of any change in SPS measures, respondingto other nations’ queries during the consultation period, and actively participating incommittee work. The FFSH Framework is designed in a way that ensures the UK cancontinue to effectively fulfil its international obligations as a WTO member.4

Scope for legislative divergence3.16Under the European Union regime, in a small number of cases where nationalmeasures to achieve common outcomes are allowed, different actions and decisionscould be taken by individual administrations across the UK. One example of wherethese differences exist is raw drinking milk: it is an offence to place raw milk or creamon the market for direct consumption in Scotland, but not in the rest of the UK. Inaddition to this, where the European Union legislation is outcome focused,differences can exist in the means through which administrations achieve the sameoutcome, for example there are differences in hygiene guidelines for cooking burgers.3.17European Union legislation also enabled Member States to develop their ownenforcement and execution provisions, and the four nations of the UK therefore allhave their own national regulations for enforcement and execution of European Unionprovisions. Similarly, under European Union legislation the operational managementof incidents allows Member States to determine their own rules for managing thepracticalities of incident response, in line with the general requirements set out inEuropean Union legislation. Protocols for UK incident handling are covered by theFSA-FSS MoU.Interdependencies/other linked frameworks policy areas3.18There is cross-over between policy areas under FFSH legislation and other publichealth policy areas (whose frameworks are being led by Defra or DHSC).These policy areas include framework areas in which the FSA/FSS are directlyinvolved: nutrition labelling, composition and standards (DHSC-led, FSA involved in NI, FSSinvolved) food compositional standards and labelling (Defra-led, FSA involved in NI andWales, FSS involved) and framework areas in which the FSA/ FSS are not directlyinvolved, but have an interest: animal health and welfare (Defra-led) plant health (Defra-led) pesticides (Defra-led)3.19Ongoing work on the UK internal market and international trade obligations will alsoneed to be monitored and factored into the FFSH Framework proposals. It will also benecessary to engage with teams working on the Future Relationship (FR) to ensurethe framework takes account of any further requirements that may arise as a result ofthe UK’s future relationship with the European Union, such as how any additional UKgovernance structures that may be established will work on a four nations basis.5

Geographical scope3.20It is the intention that the framework should apply in England, Wales, Northern Irelandand Scotland. Officials in all four nations have been closely involved throughout thedevelopment of the FFSH Framework proposals.Northern Ireland considerations3.21On 15th June 2020, the Northern Ireland Executive agreed to the principles JMC(EN)had agreed in October 2017 to underpin the development of frameworks. Prior to this,FSA officials in Northern Ireland had provided technical and analytical input to thedevelopment of the FFSH Framework.3.22The FFSH Framework will be a four nations agreement. However, the specificcircumstances of Northern Ireland are respected and reflected throughout theframework outline.3.23This includes the provisions of the Belfast Agreement (including the North/Southdimension highlighted in Strand 2 of that Agreement). These provisions will berespected.3.24Further to this, the framework ensures that Northern Ireland continues to contribute tothe formulation of UK policy on food and feed safety and hygiene. Northern Ireland’sinvolvement in policy making will ensure that the economic and social linkagesbetween Northern Ireland and Ireland will be recognised and incorporated into policyoutcomes.3.25The FSA’s role in respect to Northern Ireland within the Framework will also reflectthe requirements of the Northern Ireland Protocol. The legislation within the scope ofthe Framework is detailed within Annex 2 of the NIP, and therefore European Unionlegislation will continue to be directly applicable in NI whilst the rest of the UK will setits own regulatory regime at the end of the transition period. While the circumstancesin Northern Ireland will be different as a result of the Northern Ireland Protocol,officials and Ministers will continue to be involved in the framework’s processes andgovernance structures. How the specific circumstances in Northern Ireland will bereflected in ways of working is detailed throughout the framework outline.PART 2: PROPOSED BREAKDOWN OF POLICY AREA AND FRAMEWORKFFSH Framework analysis4.1The FFSH Framework proposals have been developed in accordance with theJMC(EN) principles, in line with guidance on frameworks developed jointly by UKGovernment and the Devolved Administrations. Officials agreed that in considering6

the requirements of the FFSH Framework, the following JMC(EN) principles would beof key importance 1: enabling the functioning of the UK internal market, while acknowledging policydivergence; and ensuring the UK can negotiate, enter into and implement new trade agreementsand international treaties and comply with international obligations; respecting the devolution settlements and the democratic accountability of thedevolved legislatures; maintaining, as a minimum, equivalent flexibility for tailoring policies to the specificneeds of each territory as is afforded by the current European Union rules.4.2In the first UKG-DA deep dive on food safety, officials agreed that commonapproaches were at least desirable for all areas of FFSH within scope of theFramework. It was proposed in a number of areas that it was necessary to have acommon approach according to the JMC(EN) framework principles. Colleagues fromScottish Government would only accept a common approach was desirable, becauseof a concern that agreeing a common approach was necessary would mean that aharmonised approach was required. It has subsequently been discussed and agreedby officials that common approaches for creating FFSH policy should be developedthrough the framework, noting that such approaches may still result in evidencebased divergence where this is considered appropriate.4.3Technical working groups (comprising of representatives from all four nations)collaboratively broke down each broad policy area (see Annex 1) into its componentparts. The technical working groups developed initial proposals as to where withineach policy area commonality might be needed. Officials from the four nations agreedthat commonality is preferred across all areas of food & feed safety and hygiene lawwhich are currently harmonised at a European Union level; the areas in scope of theframework and that common arrangements should be developed to deliver this.Officials from the four nations agreed that existing four nations cooperationmechanisms should be built on where possible.FFSH Framework implementation4.4After the end of the Transition Period, there will be a common body of FFSH law inplace across the UK, put in place in GB through the European Union Exit statutoryinstruments. The FFSH Framework agreement itself will primarily be implementedthrough non-legislative agreements. It is proposed that the Framework shouldprimarily be implemented through: a concordat between the four Governments (signed by Health Ministers); and a revised FSA-FSS MoU (setting out the elements of the Framework

Food and Feed Safety and Hygiene Law 1.1 Food and feed safety and hygiene (FFSH) law is set out in retained European Union regulations which set out an overarching and coherent framework for the development of food and feed legislation and lay down principles, requirements and procedures that underpin decision-making in matters of food and feed .

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