Most food law operating in the UK is derived from EU law. Following the end of the Implementation Period, these EU Food regulations have been retained as part of our domestic food law and have effect in domestic law immediately before exit day. Therefore from 1 January 2021 any references to EU Regulations should be read as referring to retained EU law which is published on legislation.gov.uk.
The EU Official Controls Regulation (OCR) – Regulation (EU) 2017/625 , came fully into force on 14 December 2019 and was retained in Great Britain. The legal framework created by the OCR allows members of the single market to be sure that the competent authorities (CAs) in Member States are conducting controls in a suitably rigorous and impartial manner. The legislation cuts across all aspects of the agri-food chain, such as import controls and laboratories, as well as different commodities, such as live animals, plants, food and feed of animal origin and food and feed of non-animal origin.
The OCR contains empowerments allowing the Commission to make tertiary legislation to stipulate more detailed provisions. For example, Delegated Regulation (EU) 2019/624 and Implementing Regulation (EU) 2019/627, made under Article 18 of Regulation (EU) 2017/625, set out the specific rules on official controls on products of animal origin (POAO), which repeal and replace Regulation 854/2004. A list of published tertiary legislation can be found through reading Annex A.
The Official Feed and Food Controls (Miscellaneous Amendments) (Scotland) Regulations 2019 will provide for the execution and enforcement of the OCR in relation to FSS’s areas of responsibility for food and feed law. Most of the changes update legislative references and remove references to requirements which no longer have effect.
Key elements of the OCR
The OCR seeks to clarify and/or enhance current provisions on the performance of official controls by CAs. The provisions remain substantially the same, but the key changes are:
- introducing a new definition of ‘other official activities’. For example, enforcement measures and/or remedial actions following non-compliance; management of lists of registered/approved food and feed business operators or the issuance of official certificates (Article 2);
- clarifying that CAs are required to carry out regular, risk-based official controls, directed at identifying fraudulent and deceptive practices (Article 9);
- providing for greater transparency and accountability by CAs through the publication of information about the organisation and performance of official controls (Article 11);
- requiring CAs to provide FBOs with copies of reports where non-compliance has been detected as well as where compliance has been achieved (Article 13);
- introducing new provisions to regulate the delegation by CAs of tasks relating to ‘other official activities’ and the conditions to be met for delegating, with the exception of enforcement measures and/or remedial actions following non-compliance (Articles 28 – 33);
- clarifying that sampling of animals and goods ordered on-line by the CA without identifying themselves can be validly used for the purposes of an official control. CAs must inform the food or feed business operator that such a sample has been taken and, where appropriate, is being analysed in the context of an official control (Articles 35 and 36);
- introducing harmonised rules for official controls at borders across the different commodities (Articles 47 - 55);
- amalgamating existing entry documents, such as the Common Entry Document (CED) for high-risk Food Not of Animal Origin (FNAO) and the Common Veterinary Entry Document (CVED) for POAO, as Common Health Entry Documents (CHEDs) (Articles 56 – 58);
- Border Control Posts (BCPs) will replace Border Inspection Posts (BIPs), Designated Points of Entry (DPEs) and First Points of Introduction (FPIs). All existing approvals will be withdrawn and re-designated as BCPs in accordance with Article 59 provided that the minimum requirements referred to in Article 64 (i.e. facilities, equipment, etc.) are complied with (Article 61);
- establishing IMSOC the Information Management System for official controls to link all existing and future IT systems managed by the Commission (e.g. TRACES, RASFF and Europhyt) to enable and efficient exchange of information (Articles 131 – 136).
- ensuring that the penalties associated with fraud convictions must represent the economic advantage gained by the perpetrator as a result of that fraudulent action (Article 139).