Putting consumers at the heart of policymaking (Sue Davies, Which?)

 

Sue Davies, Strategic Policy Adviser, Which?

Consumer rights and protections have been closely entwined with the UK’s membership of the EU for several decades. This includes rights to compensation for faulty goods, flight delays and protections against unfair trading, but also includes a range of protections that help to protect consumers’ health.

As the Brexit negotiations evolve, there will be risks to and opportunities for these protections that will depend on the nature of post-Brexit trade deals and national legislation. This essay considers a range of these issues, paying particular attention to food legislation and its potential implications for consumer health.

Food safety and choice

Virtually all food legislation is set at EU level, covering everything from food hygiene to labelling requirements. It also specifies how official controls to enforce compliance should be carried out. Networks exist to share information and send early warnings about potential safety issues through the Rapid Alert System for Food and Feed (RASFF), as well as for checks in third countries that export to the EU. The European Food Safety Authority (EFSA) provides EU-wide safety assessments that feed into EU policy and determine what is safe enough to go on sale, with pre-market authorisation required for many foods and ingredients.

This approach has evolved in response to various crises and generally serves consumers well. Some aspects of the regulatory framework, including the EU’s General Food Law regulation, which sets out overarching principles and responsibilities underpinning food controls, are currently under review as part of the EU’s ‘better regulation’ initiative. It is not clear whether this initiative will lead to significant changes to legal requirements.

Upholding principles

The EU approach to food regulation is also underpinned by important wider concepts. This includes separating the scientific assessment of risk from consideration of wider social and economic factors that may impact on people’s perception of risk – but recognising that these factors are legitimate. This is particularly relevant for issues such as GM foods, beef hormones and the ban on antibiotic growth promoters that many consumers have concerns about. The inclusion of the precautionary principle within EU law also allows for interim measures to protect public health where there is a potential health risk but the scientific risk remains uncertain. This has been particularly pertinent in the aftermath of the BSE crisis (commonly known as mad cow disease), during which action to protect public health came too late.

EU labelling legislation also sets out a range of requirements that are relevant to health. This includes allergen information, which must also be provided in cafes and restaurants. There is also a requirement that all health claims made on foods (such as those about heart or gut health) are assessed by EFSA and then go on an EU-wide approved or rejected list.

Risk and opportunity

Brexit brings some risks to these protections, which are very much dependent on future UK frameworks. The EU’s precautionary principle, as well as the EU’s assessment procedures and labelling requirements for some production methods, conflict with approaches taken in non-EU countries that the UK may wish to seek trade deals with – most notably the US. All EU law will be transposed into national legislation through the EU (Withdrawal) Bill, but some of the wider principles that are enshrined in the EU Treaty or measures that come into effect because of current EU operational aspects (such as EFSA assessments or alerts sent through RASFF) will need to be replicated.

In contrast, EU policy on nutrition and obesity has been a lot more limited. TV advertising restrictions limiting children’s exposure to unhealthy food adverts have been developed nationally, and the EU’s Audiovisual Media Services Directive has had little impact in this area. The UK has developed a national front-of-pack traffic light nutrition-labelling scheme, and Brexit presents an opportunity to make this compulsory, once UK food labelling is no longer an EU provision.

Wider consumer product safety

There are different challenges facing health protections that relate to other types of consumer products. As with food, mechanisms exist at EU level for the coordination of safety alerts (through the rapid alert system RAPEX), but the safety of consumer products such as cars, toys and household appliances relies much more on industry self-compliance and voluntary standards with limited independent oversight.

Cosmetic safety, for example, relies on businesses carrying out self-assessments (with a few exceptions for certain ingredients used in sunscreens) and has more limited independent oversight than the food sector. The EU’s chemicals regulation (REACH) cuts across many of these products and does require safety assessment of chemicals by the European Chemicals Agency (ECHA) at a much more general level.

The considerable number of fires linked to faulty domestic appliances in the UK in recent years has highlighted the flaws in this approach to product safety. Brexit will present new challenges for ensuring the safety of imports and should be used as an opportunity to overhaul the current system and establish a more robust regime with stronger independent oversight.

Operational aspects

There are common issues across food and other consumer products relating to operational and enforcement aspects. These include scientific safety assessments carried out by panels of experts within EU agencies – some of which already exist to some extent within the UK (eg the food sector), and some of which don’t (eg the chemicals sector). Research that underpins these assessments is also supported by the EU.

The UK will therefore need to negotiate access to EU bodies and resources – or significantly enhance national capacity so that assessments can be robustly undertaken. The UK’s ability to comply with EU standards will also be a key consideration in terms of access to the single market.

Enforcement will be crucial. Regardless of Brexit, consumer protection bodies and services, such as trading standards services, are under strain as they have taken on greater responsibilities with more limited resources. Brexit must provide the impetus to review such arrangements, and help to maintain consumer confidence in product safety when trading patterns, supply chains and border controls become more complex. This includes the creation of a national arms’ length body with responsibility for consumer product safety.

Conclusion

The impact that Brexit will have on consumer health protections, and therefore health, depends very much on the nature of the exit deal. It will also depend on the culture and approach adopted by the UK once it has left the EU. Consumer rights and protections, as well as the mechanisms in place to enforce them, must be put right at the heart of Brexit negotiations. This includes making sure that future trade policy takes account of consumer interests and is focused on opportunities to deliver genuine consumer benefits.

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