Consultation Pack for Amendments to Retained (EU) Regulation 2019/1793: Official Controls Applied to Imported High Risk Food and Feed not of Animal Origin

This consultation will be of most interest to

All England and Wales food and feed businesses, local and port health authorities, and other stakeholders with an interest in food and feed safety. A separate, parallel, consultation has been launched in Scotland by Food Standards Scotland (FSS). 

Consultation subject 

Consultation on proposed amendments to updating the lists within Retained (EU) Regulation 2019/1793 which applies a temporary increase of official controls and special conditions governing the entry into Great Britain of certain food and feed of non-animal origin from certain countries.

Purpose of the consultation 

To seek stakeholder comments on proposed amendments to updating the lists in the Annexes of Retained (EU) Regulation 2019/1793 (the Regulation). 

Details of Consultation 

Introduction 

The appropriate authorities in Great Britain (GB) are responsible for reviewing and updating the import food legislation as required. The appropriate authorities are the Secretary of State in England, Welsh Ministers in Wales and Scottish Ministers in Scotland. The appropriate authority is required to review the lists set out in the Annexes to the Regulation on a regular basis in order to consider new information related to risks and non-compliance.

The Food Standards Agency (FSA) and Food Standards Scotland (FSS) have carried out a joint review of the lists in the Annexes contained in the Regulation.  Updating the current controls will require a Statutory Instrument to be laid in each country (England, Wales and Scotland).

This review is delivered through the joint FSA and FSS risk analysis process so that Ministers can make risk management decisions based on the FSA/FSS recommendations.

It should be noted that decisions and changes to controls of imported food and feed from third countries will only apply to GB and not Northern Ireland due to the food and feed law under the Windsor Framework. 

Current controls 

Most food and feed of non-animal origin can be imported into GB without additional, enhanced controls. However, imports of higher risk food and feed of non-animal origin from certain countries can only enter GB through appropriately approved Border Control Posts (BCP) where official controls are undertaken such as documentary, identity and physical examinations including sampling. A higher risk product is food or feed that is identified as either a known or emerging risk or because there is evidence of widespread serious non-compliance with the UK agri-food chain legislation. This may be due to the presence of pathogens, contaminants and toxins including aflatoxins.

The Regulation sets out lists of higher risk food and feed of non-animal origin that are subject to enhanced border controls in its Annexes.

Consignments of food and feed listed in Annex I of the Regulation are subject to a temporary increase of official controls at BCPs on entry into GB at control points.

Annex II of the Regulation sets out the list of consignments of food and feed from certain third countries subject to special conditions for the entry into GB due to contamination risk by mycotoxins, including aflatoxins, pesticide residues, pentachlorophenol and dioxins, and microbiological contamination.

Food and feed listed in Annex IIa is suspended from entry into GB. 

Review 

The review followed the Risk Analysis Process established by the FSA and FSS. Imported food and feed of non-animal origin from specific countries were identified for assessment by the FSA and FSS based on gathered intelligence. These imported commodities were subject to an assessment of the risks to consumers; this was performed by risk categorisation. This includes analysis of GB import data which identifies the volume of such imports, sampling results, number of consignments found to be non-compliant with GB food and feed safety requirements, expected consumer exposure and the risk it may present to consumer health.
 
The outcomes of the risk categorisation were considered, along with other relevant information, by the FSA and FSS risk managers and policy officials when making proposals for recommendations for changes in official controls. All proposed recommendations are science and evidence based. 

All recommendations have been developed and considered through a four-nation expert working group, in accordance with the Food and Feed Safety and Hygiene Common Framework, and agreed by officials in Scotland, Wales, England, and Northern Ireland. It is noted under the terms of the Windsor Framework, under the UK’s Withdrawal Agreement with the EU, Northern Ireland will continue to apply EU regulations in this area. 

Main recommendations: 

The expert working group has made a set of recommendations concerning commodities that we are recommending, require changes to the level of official controls for some food and feed from certain countries. The recommendations can be found in the ‘impacts’ section of this document. We are recommending certain commodities where the evidence suggests that increased official controls are no longer necessary because the risk has been effectively managed by improved compliance, should be removed from the lists while others should increase or decrease in their checking frequency depending on the level of risk posed. Adjustments are recommended to reflect food and feed safety risks, ensuring consumers in GB continue to have access to safe imported food.

We propose to make these recommendations to Ministers. Food safety is a devolved matter, and the decisions will be made by Ministers in each devolved country. 

Once Ministers have agreed to accept our recommendations, secondary legislation will be required in each nation to amend the Regulation. It is intended that legislation to implement the outcome of this review will come into force early 2024. 

Impacts 

The proposed recommendations involve 39 individual updates to the lists contained in Annexes I and II, which are explained in the table overleaf, and summarised as follows:  

• 2 products should be removed from the scope of controls. We have been monitoring compliance levels of these commodities since they were listed in the Annexes several years ago. Data obtained through our Early Warning System (EWS) and via border and other notifications indicates that the level of risk has significantly reduced. Based on our assessment of the data we consider it is no longer necessary to have these enhanced controls in place as it shows with a high level of certainty that removal of the controls represents a negligible risk to public health. 
• 4 products should be subjected to reduced checks. Having already subjected these commodities to the highest level of enhanced controls over a number of years, we have gathered sufficient data to have increasing confidence that the level of compliance is improving. These products should be subject to this level of monitoring until we are satisfied the risk posed has reduced further.
• 3 products should be subjected to increased enhanced controls because we have concerns about the risk they pose to public health. These commodities have been subjected to monitoring and surveillance at GB border control posts over several years. The information obtained from these controls in addition to data from other countries, indicates that levels of non-compliance is not improving. Therefore, more stringent controls, placing the emphasis on the exporting country to provide assurances about the product, are considered appropriate at this time.  
• the introduction of 20 new products that should be subjected to enhanced controls due to concerns that they present a risk to public health. These commodities have been identified through EWS as well as sampling data and intelligence from other sources. The products will be subject to a proportionate level of monitoring at GB border control posts to gather evidence which will be used to reach a decision either removing them from controls altogether or increasing the level of checks undertaken. 
• 10 products that are already under control will have their CN codes updated, extending the range of commodities that are subject to checks at the border. 

Commodities listed in Annex I to the Regulation are temporarily controlled to help build a picture of whether more stringent measures might be required later. Therefore, any impacts are likely to be short term. Commodities listed in Annex II to the Regulation are more static in nature but are included in the biannual review and once the level of risk changes, the level of control is amended. Decisions on commodities listed in the Annexes to the Regulation are risk based and therefore relate only to the specified country(s) of origin. UK Importers may therefore import from other countries across the globe whose products are not identified as ‘high risk’ and where enhanced import controls do not apply.

Local and Port Health Authorities are likely to have some nominal familiarisation costs associated with the routine updates. The delivery of official controls undertaken at the border can be recovered through the levy of fees and charges. High risk commodities can only be imported through already established BCPs in GB.

For the reasons outlined, in England, an impact assessment has not been produced as the impact is anticipated to be below the de minimis threshold of +/- £5m equivalent annual net direct cost to business.

Under Welsh Ministers’ regulatory impact assessment code for subordinate legislation, a Regulatory Impact Assessment is not required where factual amendments are being made to update subordinate legislation and which do not alter the policy (or its impact) in any significant way or how it is applied in a given situation. Therefore, a Regulatory Impact Assessment has not been undertaken in Wales.

The identification of the food and feed listed in the Annexes are made on the basis of the codes from the Combined Nomenclature and TARIC sub-division.

Proposed amendments are set out in the following table: 

Annex 1

• Notes:  The identification of the food and feed products listed in Annexes I, II and IIa of official controls are made based on the codes from the Combined Nomenclature and TARIC sub-division indicated in the Annexes. Identity and physical checks, including sampling and laboratory analysis of food and feed listed in the Annexes at a frequency set out in Annexes.
• Consignments of food and feed listed in Annex I to the Regulation are subject to temporary increase of official controls at Border Control Posts at entry into Great Britain and at control points. Annex II to the Regulation sets out the list of consignments of food and feed from certain third countries subject to special conditions for the entry into Great Britain due to contamination risk by mycotoxins, including aflatoxins, pesticide residues, pentachlorophenol, and dioxins, and due to microbiological contamination. Food and feed listed in Annex IIa is suspended from entry into Great Britain. 

Engagement and Consultation Process

This consultation will remain open until Monday 28 August 2023. Once the consultation has ended, a review will be undertaken of the results and a consultation report will be published, with our final recommendations to the respective Ministers.

Questions asked in this consultation:

1. Do you have any comments on the country/commodity recommendations that are being proposed to update the lists?
2. Are you aware of any impacts of the proposed commodity updates that have not been identified in this consultation?

Annex A: List of interested parties

• Local Authorities in England and Wales
• Port Health Authorities in England and Wales
• The Association of Port Health Authorities (APHA)
• UK Major Port Group
• UK Airport Operators 
• Fresh Produce representatives
• UK Hospitality representatives
• Food and Feed representatives
• British Food importer representatives
• Packaging organisations
• UK Supermarkets
• Convenience store representatives
• British Retail Consortium
• Which?