How the EU-UK trade deal impacts product and food manufacturers

Out-Law Guide | 21 Jan 2021 | 10:52 am | 8 min. read

Product manufacturers, retailers and food businesses seeking to sell goods in both the EU and Britain must now meet separate regulatory requirements in both markets.

The UK-EU Trade and Cooperation Agreement (TCA) offers little by way of significant comfort for product manufacturers and food businesses placing products on both markets. Whilst minimal provisions are included to enable the UK and EU to co-operate on the regulation and enforcement of products, fundamentally, it does not change the position that Great Britain (GB) and the EU are now entirely separate jurisdictions with different requirements for placing products on the respective markets. Northern Ireland (NI) is treated as still part of the EU single market for goods.

How far GB and EU regulatory requirements will diverge will only become clear over time, and businesses should keep this under regular review. There are already changes they need to be aware of, however in relation to labelling, marking and product testing, and jurisdictional presence. For example, various changes to labelling requirements began to apply on 1 January 2021 for placing food on the NI/EU market, whilst changes relating to UKCA marking must be implemented by 1 January 2022.

While the new requirements have already taken effect in the EU, by contrast, a more 'gradual' approach to implementation of some of the requirements has been adopted in GB and it is anticipated that a 'proportionate' approach to enforcement will be applied in GB in the first instance too. Although there is as yet no direct evidence of reciprocity from the EU, the sentiments of the TCA suggest a sensible, co-operative approach that will allow amendments and/or over-labelling in warehouses and fulfilment houses.

Businesses trading or intending to trade products in both the GB and EU/NI market need to familiarise themselves with the rules and ensure their products comply with relevant requirements, and timescales so that they can continue to access both markets and avoid regulatory scrutiny and/or enforcement. Businesses should also evaluate new obligations that apply where supply chain roles have changed, such as where a business was previously a distributor but has now taken on the role of an importer.

Manufactured goods

Supply chain and labelling
GB  EU/NI GB and EU/NI

Products placed on the GB market with manufacturers based outside of the UK will need a UK-based entity's name on the product packaging. Depending on the product type and the medium of sale, this might be the importer, the authorised representative or the responsible person. For most, though not all, products, these details may be included on accompanying documentation until 31 December 2022.

Products sold in the EU/NI with manufacturers based outside of the EU/NI will need either an NI- or EU-based entity's name and address on the product packaging. 

Practically, dual-labelling of products with details of the entity in both jurisdictions – UK and EU/NI – will be the simplest option for products sold in both markets.

For products placed on the GB market, EU based authorised representatives and responsible persons are no longer recognised from 1 January 2021 and must be UK-based, and vice-versa for GB-based authorised representatives and responsible persons in the EU.

EU or UK entities may, when placing a product on the market from outside their respective jurisdictions, have inherited responsibilities of UK or EU importers, having previously been distributors. Importers have several key responsibilities beyond those of distributors and will need to be both aware and compliant with those obligations.

New importers' obligations

Under the separate post-Brexit regulatory regime, a distributor when placing a product on the market imported from outside its jurisdiction may have inherited responsibilities previously held by another entity. The importer is not a simple reseller of products, but has a key role to play in guaranteeing the compliance of imported products.

This means that the importer must place its name and address on the product packaging, and ensure the product has been assessed, has the correct documentation and is properly marked.

Conformity assessment – selling products in both EU and UK markets

Under the TCA, there is no mutual recognition by the UK and EU of the other's conformity assessments, save for in relation to very limited sectors and product ranges, such as motor vehicles, equipment and parts, medicines, chemicals and organic products and wine. The requirements of both must therefore be met separately, for those operating in both markets.

Compliance markings

GB  EU/NI

Declarations of conformity/performance should now be done by reference to GB legislation and standards.

CE marking, where required, can continue to be used until 31 December 2021, where there is self-declaration or where the product is subject to mandatory third-party assessment and this is carried by an EU notified body.

UKCA marking is required immediately from 1 January 2021 where products are subject to mandatory third party assessment and this is carried out by a UK body.

From 1 January 2022, UKCA marking is mandatory on all products.

From 1 January 2023, for most products, the UKCA marking should be affixed directly to the product, but until then it may be placed on a label or accompanying document for most products.

Declarations of conformity/performance should now be done by reference to EU legislation and standards.

In the EU and NI, the CE marking can be used, though where product testing is required by a notified body; this must be done by an EU notified body.

In NI, NI marking or CE marking can be used, however the NI marking can only be used for the NI market and not the EU market more broadly, and only where product testing has been carried out by a UK notified body.

For the NI market, it is therefore arguably more practicable to use the CE marking for NI where testing is carried out by an EU notified body for products requiring third party conformity assessment.

Food

Food business addresses
GB  EU/NI GB and EU/NI

Pre-packed food products sold within GB must have the name and address of a UK food business operator (FBO) on the label by 30 September 2022.

From 1 January 2021, pre-packed food products sold in the EU/NI must be labelled with the address of an EU/NI FBO/importer, and a UK address will no longer be acceptable. 

For those who sell to both the GB and EU/NI markets, two sets of labels will be required; this can be achieved by dual-labelling, although this must be clear to the consumer.

The purpose of including the FBO or importer details on the labelling is to enable consumers and regulators to know who is responsible for the food information, and accordingly, the parties' address which appears on the label must have a formal presence within the UK or EU jurisdiction respectively.

Country of origin labelling

Certain products must be labelled with their country of origin.

From 1 January 2021, products that originate from GB and sold in NI or the EU must not be labelled as EU country of origin.

Any requirement to remove EU country of origin labelling is not required for goods sold in GB until 30 September 2022.

Health and identity marks

From 1 January 2021, new logos must be placed on products produced in the UK and sold in the EU and/or NI.

For GB goods sold in the GB market, businesses have until 30 September 2022 to make these changes.

Geographical indicators

From January 2021, the UK will keep its own list of protected food names, separate from the EU regime. Existing products will remain protected in the EU and UK, however new products will need to be registered via the UK and EU registers separately.

GB products have until 1 January 2024 to affix UK logos.

Conformity assessment - wine

The TCA provides for simplified certification, documentation, labelling and packaging requirements for the imports of wine produced in the UK or EU into the other respective market.

Conformity assessment - organic food

Under the TCA, organic food products complying with UK law and certified by control bodies recognised by the UK will be accepted on the EU market, and vice versa. Products produced in GB and placed on the EU market may bear the EU's organic logo, any UK organic logo or both logos, provided they comply with the labelling requirements for the respective logo or logos.

Co-written by Simon Tingle of Pinsent Masons.