Joint Section 42 advice - UK - New Zealand Free Trade Agreement

Introduction

As the UK’s Food Safety Authorities with a statutory duty to protect food and feed safety ^{(footnote 1)}  and consumers’ interests in relation to food, the Food Standards Agency (FSA) and Food Standards Scotland (FSS) were asked by the Department for Business and Trade (DBT) on the 13th May 2022 to provide joint advice on the UK-New Zealand Free Trade Agreement (FTA), as signed on the 28th February 2022. Specifically, FSA and FSS were asked, in accordance with section 42(4) of the Agriculture Act 2020, to provide advice on whether, or to what extent, the measures in the UK-New Zealand FTA are consistent with the maintenance of UK levels of statutory protection for human health for the areas within FSA/FSS statutory remit. This response represents our advice to DBT’s request.

In summary, the FSA and FSS advice is that:

• the UK-New Zealand FTA maintains existing food safety and nutrition statutory protections in accordance with UK laws and regulations
• no changes to the UK food regulatory system are required to give effect to this FTA at the point of entry into force
• the FTA text preserves the regulatory autonomy of the UK government and devolved administrations with respect to food safety and nutrition related matters and will not prejudge any future decisions in this regard, which will continue to be taken by health ministers across the UK informed by transparent advice on science and evidence from the FSA, FSS, and other expert bodies where appropriate, including the UK Nutrition and Health Claims Committee. This is key to upholding statutory protections in the future

Scope of FSA and FSS advice

To reflect the FSA and FSS’s full statutory remit as organisations with devolved policy interests, we are providing advice on statutory protections for food safety and nutrition ^{(footnote 2)} related matters. The advice does not cover statutory protections for food standards unrelated to human health which are out of scope of this advice request. The FSA and FSS will continue to consider our approach on broader human health issues related to food for future requests for advice under section 42(4) of the Agriculture Act 2020.

UK levels of statutory protection ^{(footnote 3)} are defined in the Agriculture Act 2020 as being the levels of protection, which at the time the report was made, are provided for under any legislation which has effect in, or in any part of, the United Kingdom. Food safety and nutrition related matters are a devolved competence, meaning that any extant legislation that has legal effect in any part of the UK is relevant to this assessment. This includes national laws across the UK and assimilated law applicable within Great Britain. EU law that is currently applicable within Northern Ireland by virtue of Annex 2 of the Protocol on Ireland/Northern Ireland is not in scope of this advice – article 1.2(3) of chapter 1 on Initial Provisions and General Definitions affirms our ability to adopt, maintain and amend measures that provide for the execution of the provisions of EU law that are applicable in the UK in respect of Northern Ireland, whilst the Protocol remains in force. Consequently, although Article 1.2(4) provides a basis for discussion of the impact of any such provisions, the application of laws captured by the Protocol is not affected by the FTA. All references to UK statutory protections in this advice therefore relate to the legislation described as being in scope in this paragraph.

Given the existing Sanitary Agreement (SA) ^{(footnote 4)} between the UK and New Zealand on sanitary measures applicable to trade in live animals and products of animal origin, the chapter in the FTA on Sanitary and Phytosanitary measures does not apply to any measure or good that is covered by the SA. In the same way, the agreement in principle between the UK and New Zealand clarified that composite products will be brought in scope of the SA rather than the FTA. By virtue of this, the chapter therefore focusses on phytosanitary measures applicable to trade in ‘plants, plant products and processed plant-based food’. This is taken into consideration in this advice.

Consumer and stakeholder interest

In writing this advice, it is important to first set out the relevant wider context in relation to consumer views and stakeholder concerns. Further to the request received from DBT, the FSA and FSS invited submissions on food safety and nutrition statutory protections from a number of interested parties, including those who represent the interests of consumers. With thanks to respondents, evidence received as part of this consultation process relevant to the question our advice is addressing has been cited in our advice.

Data from recent FSA and FSS consumer engagement surveys has consistently shown that consumers have significantly greater levels of concern about standards in food produced outside the UK compared to domestic production. In the latest wave of the FSA’s ‘Food and You2 ^{(footnote 5)} survey, which collected views from consumers in England, Wales and Northern Ireland between April and June 2021, 75% of participants had concerns about food outside the UK being safe and hygienic compared to 54% for food within the UK; 71% were concerned about food produced outside the UK being what it says it is, compared to 51% for food coming from within the UK. The most recent wave of FSS’s Food in Scotland survey ^{(footnote 6)} conducted in December 2021, found that 70% of respondents indicated they were concerned about food standards and the quality of food we eat, and FSS consumer research conducted in September 2020 ahead of EU Exit ^{(footnote 7)} found 77% of respondents were either ‘quite or very concerned’ about a drop in standards post 31st December 2021. A nationally representative FSA poll conducted in November 2020 ^{(footnote 8)} found that almost 8 in 10 people (78%) supported the UK maintaining its current food standards, even if food produced in the UK was more expensive and less competitive in the global market.

In June 2021, the consumer organisation Which? ^{(footnote 9)} conducted research with a nationally representative group of 3,263 consumers to understand their views and attitudes towards international trade. Which? also reported high levels of support for maintaining UK food safety standards. Of the respondents surveyed they reported that 91% thought that the UK government should make sure that when agreeing trade deals the same standards relating to safety and health should apply to imports as to food produced in the UK.

It is clear from this evidence that maintaining food safety and health standards in trade deals is important to consumers and stakeholders. Existing statutory protections, such as the right to regulate for levels of protection appropriate to UK consumers based on science and evidence, and the right to take proportionate precautionary action on a provisional basis to protect consumers, will play a key role in how those standards are maintained in future. FSA and FSS will continue to provide science and evidence-based advice to ministers that takes into account consumers’ wider interests in relation to food so that they can have confidence that food is safe and what it says it is as the UK government takes forward its independent trade policy.

Stakeholders have also been clear on the importance of having robust scrutiny arrangements in place for assessing the impacts on human health. Evidence put forward to the Environment Food and Rural Affairs (EFRA) Committee by the Sustain Alliance underlined the duty under the Agriculture Act 2020 for the Secretary of State to report on human health statutory protections and for such reporting to be subject to the same levels of transparency, evidence gathering and publication as those for animals and plants.

Overview

The preamble to the UK-New Zealand FTA legal text sets the tone for a trading agreement which is underpinned by some important themes in the context of maintaining statutory protections for food safety and nutrition. Namely, the Parties recognise each other’s respective autonomy and right to regulate within their territories in order to achieve legitimate public policy objectives, including the protection and promotion of public health, public morals and animal welfare.

The initial provisions in chapter 1 support this theme by setting out that the Parties affirm existing rights and obligations with respect to each other under the World Trade Organisation (WTO) Agreement. In a food safety and nutrition context, these basic international rights allow the UK government and devolved administrations to continue to take proportionate unilateral measures necessary to protect the health of consumers across the UK.

Given that regulatory autonomy is underlined as important to both Parties in this FTA, it follows that no new permissions or authorisations were agreed ‘up-front’ for agri-food products that are not already authorised for import to the UK or New Zealand. In order to access each other’s market for any new agri-food exports, each Party must submit an application via each other’s respective market access processes. In the UK, such applications are received, coordinated and risk assessed by the Defra-led UK Office for Sanitary and Phytosanitary (SPS) Trade Assurance, with input from FSA/FSS, Defra agencies and other government departments as appropriate. Access for any new agri-food products would only be permitted following a robust assessment to confirm a trading partner is able to meet UK import requirements. Such assessments would also look at food production standards and controls in the exporting country, which could differ without impacting on food safety. The FTA does not include provisions that affect the existing UK ban on certain growth promoters used in meat production such as hormone treated beef, which applies to both domestic and imported foods.

In the same way, should a business from New Zealand wish to market a new product in Great Britain (GB) such as a novel food, food additive, feed additive or genetically modified food or feed, an application would need to be made through the regulated products application service and undergo risk analysis by FSA/FSS to determine the safety of the product before it could be authorised by GB Ministers for use as an ingredient in foods or feed imported into GB. ^{(footnote 10)}

Implementation of this FTA will not require any new food safety legislation, nor any changes to domestic regulatory food safety policy to be brought forward by the FSA or FSS in order to meet the obligations at the point of entry into force. Likewise, this FTA will not require any new nutrition legislation to be brought forward by the responsible UK competent authorities. ^{(footnote 11)} Furthermore, article 33.5 in the Final Provisions chapter sets out explicitly that where reference in the FTA is made to laws and regulations, that includes any future amendments or successor laws or regulations (unless stated otherwise).

Both under WTO terms, and under the terms of this FTA, nothing would prevent the UK government or devolved administrations from maintaining or introducing science and evidence-based measures, or from taking provisional action on the basis of pertinent information to impose controls or prohibitions on imported food and feed in order to meet the level of food safety protection deemed appropriate for consumers across the UK. This applies also to a potential risk posed by substances added to food for nutritional purposes.

Imported food not of animal origin (FNAO) is considered higher risk where it may be contaminated with aflatoxins (such as nuts), pesticides, microbiological contamination or radiocaesium and must therefore be imported through a designated port with appropriate facilities. These commodities are subject to an increased frequency of checks which include examination and testing. There are currently no higher risk FNAO commodities entering the UK from New Zealand.

Pesticide Action Network (PAN) UK has concerns that “the FTA might facilitate trade in foodstuffs containing pesticide residues that are not currently allowed to appear in UK food because they pose a risk to human health” and this concern is shared by Sustain. New Zealand already exports a range of agri-food products to the UK. In 2019, for example, New Zealand exported 44,450 tonnes of meat and meat offal, 19,140 tonnes of vegetables and certain roots and tubers, 42,335 tonnes of fruit, nuts, peel of citrus fruit or melons and 79,046 tonnes of beverages, spirits and vinegar. ^{(footnote 12)} Crucially, food and feed imports from New Zealand will continue to have to meet UK food safety and nutrition legislative requirements including, for example, complying with any existing prohibitions for unauthorised substances or for vitamins and supplements, as well as complying with maximum residue limits for pesticides and maximum levels for contaminants set by the UK.

PAN UK also has concerns that “international standards for pesticides come from Codex. Maximum Residue Levels set by Codex tend to be higher than those set by UK.” Nothing in this FTA affects the UK’s existing right under article 3 in the WTO SPS Agreement which allows WTO members to apply import controls which deviate from international standards set by Codex or other World Trade Organisation reference bodies, where justified by risk analysis. In the pesticide example, this means that UK maximum residue limits may be lower (more strict) than those set by Codex where scientifically justified.

Animal products imported to the UK from New Zealand only do so on the basis that New Zealand is listed as an approved country by the UK and listed for that particular commodity. Such commodities must come from establishments that meet UK requirements. The listing process is now managed by the UK Office for SPS Trade Assurance and involves, amongst other things, audit and assessment of a country’s system of official controls and the country’s residue monitoring plan. Further assurances that consignments are meeting UK import requirements are provided by the official certification accompanying the consignment that attests that the product has been produced to UK standards. Consignments are subject to official controls at the UK border which includes documentary and identity checks and a percentage are subject to physical checks which may include testing for contaminants such as heavy metals or veterinary residues. Nothing in the FTA removes any of these requirements and assurances with regards to ongoing trade.

Relevant chapter analysis

In assessing the maintenance of existing statutory protections for food safety and nutrition, the following chapters are particularly relevant:

• chapter 4 – Customs Procedures and Trade Facilitation
• chapter 5 – Sanitary and Phytosanitary (SPS) Measures
• chapter 7 – Technical Barriers to Trade (TBT)
• chapter 20 – Consumer Protection

Chapter 4 – Customs Procedures and Trade Facilitation

There are several articles in this chapter which contain provisions relating to the customs procedures for goods, in particular articles 4.8 on Expedited Shipments, article 4.9 on Release of Goods and article 4.10 on Perishable Goods. In all cases, exemptions have been included in the text and footnotes which ensures that where regulatory checks by competent authorities at border control posts (including food safety import checks) are required, these can still be conducted as they are now without any time constraints. This means that where documentary, identification or physical checks including sampling and testing, are required for the purposes of public health protection, the release times stipulated in these articles would not apply.

Article 4.11 on Risk Management is also pertinent to official controls carried out by competent authorities at border control posts. Nothing in the article prevents the relevant authorities from continuing to conduct risk-based imported food and feed checks and surveillance as is the case now.

Chapter 5 – Sanitary and Phytosanitary (SPS) Measures

The SPS chapter text agreed with New Zealand is of fundamental importance when it comes to reserving the UK’s right to maintain existing laws and regulations to protect human life and health, including food safety and nutrition. It is also important that the agreed text has not impinged on the way food law regulation and enforcement is implemented in the UK – the following key articles outline how the text achieves this:

Article 5.4 Affirmation of the SPS Agreement

Affirmation of rights and obligations under the WTO SPS Agreement means that the Parties recognise that WTO terms have primacy when it comes to the application of measures that protect human health and life. Nothing in the SPS chapter with New Zealand will affect that and this is significant as the WTO SPS Agreement provides both Parties with important rights that allow us to respectively set our own level of public health protection appropriate to the population in line with the relevant science and evidence, socio-economics and technical feasibility (Art 5, WTO SPS Agreement). ^{(footnote 13)}

Article 5.6 Equivalence

Article 4 of the WTO SPS Agreement on Equivalence ^{(footnote 14)} obliges WTO Members to accept the SPS measures of other Members as equivalent even if these measures differ from their own if the exporting Member objectively demonstrates that its measures achieve the importing Member’s appropriate level of protection. The WTO SPS Committee developed specific guidance ^{(footnote 15)} to help Members implement this article. Such equivalence determinations are trade facilitative and can result in smoother trade in the products affected by the laws and regulations that have been deemed as equivalent.

Noting that we already have long-standing equivalence arrangements in place with New Zealand for a number of animal products under the SA, no new equivalence determinations for agri-food products were agreed as part of this FTA. High level principles re-affirming WTO terms on the approach each Party will have to future equivalence determinations were agreed. FSA and FSS will play a key role alongside other government departments in assessing the risk in any future equivalence requests and recommending any special conditions of trade (which could include particular requirements for processing, packaging etc.) that may be required to meet the UK’s level of protection with regard to food safety. It is important to note that equivalence agreements do not remove the requirement for exporters to comply with the importing country’s maximum residue limits for pesticides and maximum levels for contaminants in food. Such determinations would also not restrict the UK from making changes to our SPS regime in future in the interests of consumers across the UK, in which case any determination would be reviewed. Importantly, the determination of equivalence rests with the importing party.

Article 5.8 Risk Analysis

This article reaffirms the importance of ensuring that SPS measures are based on relevant international standards, guidelines or recommendations, or where they deviate, are based on risk analysis that has been conducted in accordance with relevant provisions, which includes domestic provisions. It also directly references the article 5 WTO SPS Agreement provisions on risk assessment which includes the ability to adopt provisional SPS measures on the basis of pertinent information where relevant scientific evidence is insufficient. These international rules underpin the UK’s own framework for food safety regulation – for example, UK general food law includes a precautionary principle that can be adopted where the possibility of harmful effects on health is identified but scientific uncertainty persists. Nothing in this article restricts the way in which the FSA and FSS carry out risk analysis for food and feed matters.

Article 5.9 Audit

Whether in the context of UK audit in New Zealand or hosting an inward mission from New Zealand here in the UK, this article sets a helpful framework for conducting audits with a view to minimising burdens on the Parties and ensuring that the parameters of an audit are clearly communicated and agreed in advance. Nothing in the article prevents the UK from conducting an audit where justified for the purpose of seeking assurances on New Zealand’s food safety control systems, nor does it prevent the UK from taking emergency food safety measures as appropriate (see para 5.11 below).

Article 5.10 Trade Conditions

Nothing in this article affects the ability of FSA and FSS to carry out its role and develop risk management advice and implement food law as we do now.

Article 5.11 Emergency Measures

The emergency measures text respects both Parties’ right to take rapid action to protect human life and health and lays down some parameters for how the Parties would engage in such instances and for conducting science-based reviews to justify either continuance or lifting of the measures.

Article 5.12 Import checks and fees

This article does not constrain the UK’s right to carry out risk-based import checks and to take appropriate enforcement action where non-compliance is identified, in line with existing UK laws and regulations.

Article 5.13 Official Certification

This article preserves the UK’s right to require official certification of imported foods from New Zealand where deemed necessary in order to receive assurances on a consignment-by-consignment basis that UK import requirements have been met. Paragraph 4 of this article recognises that neither the UK nor New Zealand currently require certification for low risk foods within the scope of the chapter and that introduction of such would be on a risk basis. This is in keeping with the proportionate and risk-based approach taken to food safety certification in the UK.

Article 5.14 Cooperation on Antimicrobial Resistance (AMR)

AMR is a national strategic priority for the UK government and devolved administrations which has led to the development of a 20-year Vision for AMR and the current 5-year National Action Plan, which runs until 2024. Outputs from the FSA’s and FSS’s AMR research programme and cross-government partnership activity is contributing to the National Action Plan as well as improving our ability to undertake AMR food safety risk assessments to ensure that future work meets important and emerging challenges. The FTA text on AMR promotes exchange of information, expertise and data on AMR surveillance which is supportive of our own AMR research programmes and surveillance agenda. There is also recognition that the issue of AMR requires a transnational and multidisciplinary approach and that there are interdependencies between animal health, human health, food safety, food security and the environment. This is aligned with the ‘One Health’ approach FSA and FSS are taking in relation to surveillance activities under the Global Action Plan.

The Sustain Alliance raised concerns over a number of antibiotics used as growth promoters in animals reared for food production in New Zealand which, whilst not currently of medical importance, have potential human health implications in the future. Nothing in this article or in the FTA requires the UK to change existing levels of statutory protection, including that imported products must comply with UK prohibitions or residue limits for veterinary medicines, including antimicrobials, and nor does the FTA affect the ability of the UK government to strengthen controls in these areas in the future as it has committed to do.

Article 5.15 Transparency, Notification and Information Exchange

This article obliges New Zealand to promptly notify the UK of any significant food safety issue related to food or feed traded with the UK, and vice versa. This complements the good relationships the FSA and FSS already have with the Emergency Contact Points in the New Zealand Food Safety Authority and as members of the International Food Safety Authorities Network (INFOSAN). Information relating to any significant food safety issue affecting Northern Ireland would additionally be communicated by FSA Northern Ireland via the EU Rapid Alert System for Food and Feed, as Northern Ireland is within the EU regulatory zone.

Articles 5.16 Technical Working Groups and 5.18 SPS Measures Sub-Committee

These articles establish fora through which UK and New Zealand can consider any matter related to the SPS chapter. This includes, for example, periodically reviewing the implementation of the chapter by the Parties, exchanging relevant information and identifying opportunities to work collaboratively. Notably, the Committee’s activities may include discussion of proposed SPS measures being considered by either Party as well as resolution of SPS issues that affect trade between the 2 countries. It is important to highlight that these structures will be working to resolve trade issues within the confines of the existing regulatory frameworks with a focus on phytosanitary matters. They will sit alongside the existing structures under the Sanitary Agreement which provides a similar forum to discuss trade in animal products. These committee structures are not intended to replace or usurp the separate decision-making mechanisms and processes through which trading partners, including New Zealand, can, for example, apply to export a new product to the UK, or be formally consulted on proposed new regulations etc. The forum will help signpost to these dedicated channels and facilitate communications between us. This is crucial to the fundamental commitment made by both sides in this FTA to recognise each other’s respective autonomy and sovereign right to regulate within their territories and will be key to upholding statutory protections in the future.

Article 5.19 Dispute Settlement

Neither Party has recourse to dispute settlement under chapter 31 (Dispute Settlement) for any matter arising under the SPS chapter. Non-application of dispute settlement to the SPS chapter means that neither the UK nor New Zealand have recourse to dispute settlement under the FTA for SPS matters. Any dispute would instead need to be raised via WTO mechanisms as is the case now. However, Parties may make use of the FTA provisions on technical consultation to try to resolve issues bilaterally.

Chapter 7 - Technical Barriers to Trade (TBT)

The TBT chapter is relevant to the maintenance of statutory protections in relation to human health, including food safety and nutrition related matters, insofar as it preserves the UK’s right to regulate in line with international WTO rights and obligations and with respect to specific marking and labelling provisions, as detailed below. Any disputes that may arise between the Parties under this chapter would be subject to the dispute settlement process set out in chapter 31 (Dispute Settlement) of the FTA.

Article 7.4 Incorporation of Certain Provisions of the TBT Agreement

Affirmation of rights and obligations under the WTO TBT Agreement ^{(footnote 16)} means that the Parties recognise the primacy of WTO terms in applying technical regulations, standards and conformity assessment procedures. The agreed text therefore re-affirms the right of the UK to implement technical measures to achieve legitimate policy objectives, including the protection of human health and food safety (Art 2, WTO TBT Agreement), and incorporates certain provisions of the TBT Agreement into the FTA.

Article 7.6 International Standards, Guides and Recommendations

This article reaffirms WTO commitments to base TBT measures on relevant international standards where they exist. This does not affect the UK’s right to regulate or require changes to existing food safety or nutrition related statutory protections.

Article 7.7 Equivalency of Technical Regulation

Article 2.7 of the WTO TBT Agreement obliges WTO members to give positive consideration to accepting as equivalent, technical regulations of other members, even if these regulations differ from their own, provided they are satisfied that these regulations adequately fulfil the objectives of their own regulations.

This article reaffirms this WTO commitment, and obliges the UK and New Zealand to give positive consideration to any request to develop further arrangements or agreements for achieving the equivalence of technical regulations. As such, it does not change existing UK statutory protections insofar as it may relate to technical regulations on food and feed safety or nutrition related matters.

Article 7.14 Marking and Labelling

This article builds on the general rights and obligations contained within the WTO TBT Agreement with specific reference to marking and labelling, which includes marking or labelling measures required for food or feed safety and nutrition related purposes. In line with WTO commitments, the text of this article therefore safeguards the UK’s right to regulate for the purpose of food and feed safety and nutrition labelling and does not require changes to existing statutory protections in the UK. Both the UK and New Zealand must ensure such measures are non-discriminatory and are no more trade-restrictive than necessary to fulfil legitimate policy objectives (Article 2, WTO TBT Agreement).

The article obliges the UK and New Zealand to accept that labelling and corrections to labelling may take place at the point of entry or inland, prior to the product being offered for sale, subject to national rules and customs procedures, other than for labelling that is required for public health or safety. The article also provides some flexibility to allow information to be provided on imported product labelling in addition to that required by national rules. Where additional labelling is provided it must not be misleading, contradictory, inconsistent or confusing or compromise domestic requirements which is consistent with food information rules. It also allows for marking or labelling information to be provided on detachable labels or accompanying documentation, where legitimate policy objectives are not compromised. These flexibilities do not change the need for imported products from New Zealand to meet existing UK food safety and nutrition related marking and labelling rules.

Chapter 20 - Consumer Protection

This chapter aims to promote transparent and effective consumer protection measures, and their enforcement, to enhance consumer trust and welfare. It includes a specific article placing obligations on the Parties to maintain consumer protection measures against fraudulent, deceptive, misleading or unfair commercial activities, including making false claims or advertising (Article 20.2). This aligns with existing consumer protection measures in the Food Safety Act 1990, that food offered for sale should be of the nature or substance or quality demanded, and should not be falsely described or presented.

It also places an obligation on the Parties to provide consumers engaged in online commercial activities with a level of protection no less than that provided for other forms of commerce (Article 20.3). This is consistent with domestic requirements on the distance selling of food, insofar as they relate to food safety or nutrition statutory protections.

Conclusions

We have set out the FSA and FSS’s advice on the text of the UK-New Zealand FTA and its impact on statutory protections for food safety and nutrition. In summary, our conclusions are:

• the UK-New Zealand FTA maintains existing food safety and nutrition statutory protections in accordance with UK laws and regulations
• no changes to the UK food regulatory system are required to give effect to this FTA at the point of entry into force
• the FTA text preserves the regulatory autonomy of the UK government and devolved administrations with respect to food safety and nutrition related matters and will not prejudge any future decisions in this regard, which will continue to be taken by health ministers across the UK informed by transparent advice on science and evidence from the FSA, FSS and other expert bodies where appropriate, including the UK Nutrition and Health Claims Committee. This is key to upholding statutory protections in the future