New Food Safety Controls Regulation to impact Irish Businesses

Today’s consumers expect safe, quality assured food as well as more transparency and information about where their food comes from. Additional and more onerous rules and regulations have been introduced at an EU level to ensure food producers meet consumers' expectations. EU Member states are obliged to carry out certain ‘official controls’ on food products, food business operators and establishments.

On 14 December 2019, a new Official Controls Regulation (EU) 2017/625 (“OCR”) will replace Regulation (EC) No 882/2004.The OCR will impact food business operators and competent authorities. The OCR consolidates the legal basis for food control in the European Union to a more standardised control structure including food and feed law, rules on animal health and welfare, plant health and plant protection products. In addition to the area of food safety and hygiene, the focus of the Regulation is on traceability, consumer information, transparency and anti-food fraud measures.

Key features of the new Regulation include:

• a new emphasis on food fraud and the protection of consumers against unfair trade. Competent authorities must take into account the likelihood of fraudulent and deceptive behaviour when deciding the appropriate frequency of controls;
• fees introduced for certain official control activities;
• enhanced powers of competent authorities to perform official controls on samples ordered online;
• the introduction of self-inspections or ‘own-controls’;
• a requirement on competent authorities to carry out unannounced inspections;
• penalties for food fraud will be determined by the fraud value or the revenue of the company;
• the establishment of EU-reference-centres for animal welfare;
• a common integrated system of official controls at border control posts, replacing the current fragmented control frameworks, has been established. Common rules will apply to controls carried out at borders on animals, products of animal origin, plants and other products and goods that must be checked before they enter the EU; and
• member states are allowed to publish the results of food controls but the operator must be provided with the opportunity to comment on the results and the competent authority must make publicly available information about rating scheme systems for operators.

Other EU control regulations^[1] are still in force and remain unchanged regarding hygiene, HACCP and microbiological self-inspections.

How might a no-deal Brexit impact the implementation of Regulation (EU) 2017/625 by food business operators and competent authorities?

The OCR obliges competent authorities to carry out regular import controls on food and feed of non-animal origin imported into the EU.

If the UK leaves the EU it will be outside EU food safety systems and controls, including those that exist at pan-European level, such as the Rapid Alert System for Food and Feed (“RASFF”). RASFF is a tool ensuring the flow of information that enables swift reaction when risks to public health are detected in the food chain. Food crime (i.e. the deliberate adulteration or substitution of foodstuffs) is a highly profitable criminal activity. The potential lack of information being shared regarding food fraud between Ireland and the UK post-Brexit could present an opportunity for criminals, and a likely increase in the resources required to police this area.

More official controls will be required for imports and exports to the UK. As the OCR mandates the introduction of mandatory charges for official controls, this could have serious financial consequences for importers and exporters of food and feed products to and from the UK.

Health certificates are required for food and feed exports from Ireland to third countries. Post-Brexit this could pose an increased administrative burden on operators and  competent authorities who may need to ensure that there are sufficient appropriately trained officers to perform inspections and sign off on health certificates for all consignments being exported from Ireland to the UK. Similarly, in the event of a no-deal Brexit, all food products either comprising or containing products of animal origin, which enter Ireland or mainland Europe from the UK will require a health certificate.

For more information or advice on how to prepare your business for the new regulations, contact Sean O'Donnell, Mark O’Shaughnessy, or Sarah Reavey from the ByrneWallace Dispute Resolution and Regulatory Affairs Team.