Brexit: Milk Tray escapes the net

By Richard North - March 11, 2021

There are quite a lot of developments in the post-Brexit field at the moment, although you would hardly know it from the coverage in the national media. But even the reports one sees can hardly be taken at face value, although the default mode seems to be uncritical belief in anything which seems remotely plausible.

A case in point is yesterday’s report from the Financial Times headlined, “Food manufacturers facing fresh hit from Brexit red tape”. The EU, the paper tells us in the sub-heading, “will require additional paperwork covering multi-ingredient products”, from 21 April.

The paper goes on to tell us that UK food manufacturers “are facing millions of pounds in extra costs due to Brexit red tape from next month when the European Commission introduces new layers of bureaucracy on food imports, the industry has warned”.

The new EU legislation, it says, making the usual mistake of calling it “customs rules”, covers “multi-ingredient products, ranging from chocolate bars to curry sauces”. It is expected, we are told, “to increase the volume of UK export health certificates required to send food to the EU by up to one-third”.

The additional paperwork, it is also claimed, will lead to more problems in operating the Northern Ireland Protocol “as it will increase the levels of checks on food products moving from GB to NI”.

For its source, the paper relies on the Food and Drink Federation and, although the issue seems to be of some concern, the Federation doesn’t bother referring to it on its website. In fact, the FDF hasn’t published any news items specifically about Brexit on its website since December 2020.

Given the less than stellar performance of trade associations on Brexit, one might have thought that a little care should be exercised in using any of them as an unverified source, but the FT dives right in, citing Ian Wright, the FDF chief executive.

He is given a platform to warn that the “new bureaucracy” would make it “unviable” for many of his members to continue shipping to Northern Ireland, declaring: “The added bureaucracy will prove costly to businesses of all sizes… it is vital that any checks which are undertaken are done so in a proportionate manner”.

Continuing its report, the FT tells us that the “new EU rules”, which will apply to all so-called “third countries”, mean that “shelf-stable” products that contain meat and pasteurised milk and some egg products will require a vet-stamped export health certificate.

Other products, it continued, such as cheese and onion crisps, which contain cheese powder, will require pages of “attestation” documents from the shipper detailing the source of the cheese used to flavour the crisps. This, we are told, is according to “policy experts” at the FDF.

And several UK food manufacturers – who conveniently asked not to be named – have told the Financial Times that the additional paperwork and cost from EHCs will make exports of composite products commercially non-viable.

It is at this point, for the first time in the piece, that we actually see the correct legal designation of the foods in question. They are “composite products”, although the term is used in passing, without its significance being made clear.

In fact, composite products are complicated, so much so that the Commission has produced guidance on how to identify them, and how to distinguish foods “which could erroneously be considered as composite products”, originating from third countries. The guidance also refers to “shelf stable” products, those which are stable at ambient temperatures.

And it is here that a mystery starts to emerge. But, to understand it, one must take a cue from this Commission guidance. From this (and updating it), the requirement inspect composite products at border control posts is not at all new, when it comes to foods containing meat, or certain proportions of milk or egg.

Currently, the requirement stems from Commission Delegated Regulation (EU) 2019/625, supplementing Regulation (EU) 2017/625 which in turn replaced Regulation 854/2004.

In other words, the bureaucracy associated with the export of composite products to the EU is by no means new. It has existed for a long time. Even before the 2004 regulations, there were the 1991 regulations and others before them, lost in the mists of time.

However, even as EU import rules were being progressively tightened, in 2002 it was recognised that some “composite food products containing only a limited percentage of products of animal origin” presented such a low risk that they could continue to be subject to national controls.

This changed in 2007, with Commission Decision 2007/275/EC. Then, in the interests of consistency, it was decided to establish a list of certain foodstuffs and composite products that could be exempted from the veterinary checks at the borders. Then, and subsequently, products containing meat, and high proportions of milk or egg were never exempted.

It is here, though, that we see the genesis of the legislation to which the FT report refers. It was this legislation which, back in 2017, a technical sub-group of the Commission reviewed. Its aim was to exclude products from veterinary inspection “which had not posed risks so far”, and to avoid unnecessary checks, “especially as regards shelf stable products”.

The group was looking to a first draft of new legislation in 2018 but, in the way of things, it has taken until now to produce a new Commission Delegated Regulation, so new that it has not yet been allocated a reference number.

“In the interests of simplicity and transparency”, it says, “as well as to facilitate their application and to avoid a multiplication of rules”, the rules for composite products exempted from official controls at the border control posts “should be laid down in a single act rather than in separate acts with many cross-references and the risk of duplication”.

Then, to ensure that the shelf-stable composite products meet public and animal health requirements, it requires national (i.e., EU Member State) “competent authorities” to perform official controls regularly, on a risk basis and with appropriate frequency, “at the place of destination, at the point of release for free circulation in the Union, or at the warehouses or the premises of the operator responsible for the consignment”.

It is the Annex which sets out the exempted products, which include: “Confectionery (including sweets), chocolate and other food preparations containing cocoa”. Dried soups and stock are also listed.

As to the overall effect of the legislation, the explanatory memorandum accompanying the regulation states: “No impact assessment has been carried out, as this Regulation is not expected to have any significant impact”.

Yet, although this is highly relevant to the issue at hand, it is not this specific regulation which the Financial Times asserts is the cause of UK food manufacturers “facing millions of pounds in extra costs due to Brexit red tape”.

The new paperwork is known as the “private attestation”, and the requirement is actually set out in Regulation (EU) 2019/625, of 4 March 2019. However, things now start to click into place as the provision only comes into force on 21 April alongside the new regulation.

The FT then asserts that much of this “additional paperwork” will need physical stamps from authorised vets. This is simply not true. The Regulation (Article 14) states that the “private attestation” has to be prepared and signed by the importing food business operator, to accompany the consignments of composite products exempt from inspection – as listed in the new regulation. Obviously, the details of any attestation will be provided by the UK manufacturer, but the legal responsibility lies with the importer.

But the paper does not seem to understand this. “The new rules”, it goes on to say, “will land particularly hard on smaller companies that do not have the benefits of economies of scale, and the trade in chilled products such as sandwiches and ready meals between the UK and the Republic of Ireland, according to Karin Goodburn of the Chilled Food Association”.

This, in itself, is absurd: “chilled products such as sandwiches and ready meals” are not, by definition, shelf-stable. They have never been exempt from inspection at border control posts. Neither the new regulation, nor the one it replaces, apply to them.

Despite that, the Chilled Food Association is said to have estimated that these new rules will require a 36 percent increase in health certificates, most of which will fall on trade with Ireland worth about £1 billion a year. “The question is whether all this new administrative cost can be borne, given existing profit margins. Even the ‘attestations’ are not simple, they can go on for pages and pages for every component in every food”, Goodburn adds.

This is fiction, as is the claim that attestations require veterinary signatures, even though the FT states that the regulation “will also put further pressure on the sector”, having the British Veterinary Association warn that they will need to adjust to the new rules.

“We do have concerns. We know already that there are some pinch points as vets are being diverted towards export documentation. We do recognise that there is a capacity challenge and it’s yet to be filled”, says James Russell, the president of the BVA.

And so, the FT writes: “Businesses will also be forced to adapt, according to the FDF, which said that members were raising serious concerns about the coming changes, with one large snack maker warning costs could run into millions of pounds”.

“We will need a vet on site for 10 hours per day, five days a week at a cost of £300,000 per annum. Multiply this across our sites where we export and we are looking at a potential cost running into the millions,” the snack company told the FDF.

Indeed, that may have been the case, but the vet fees have nothing to do with the new requirements – they stem from existing legislation, and apply to non-exempt products. While the “attestation” is new, it applies only to products which are exempt from inspection at border control posts and is considerably less onerous, and vastly cheaper, than producing an EHC and the certification associated with formal inspection.

Sadly, therefore – contrary to the picture in the FT – we are to be denied the entertainment of official veterinarians lining up in border control posts to inspect boxes of Milk Tray, to ensure they are fit to eat. The continentals may eat their chocolates, unsullied by veterinary hands.

Thus, virtually every detail in the FT story is either wrong or confused, giving a completely misleading description of the situation on which it reports. Yet, such is the coprophagic nature of the British press that the story – errors and all – is already being repeated in City AM.

Before we have finished, we will see many more repeats, and a new narrative will have been born.
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