Edible insects, CBD, lab-grown meat: the opportunities for novel foods could be huge. But will the UK use Brexit to diverge from the often conservative EU approach?
In the late 1990s, public hostility towards genetically modified (GM) foods across the EU was rife. While in the US, consumers had largely embraced supermarket aisles packed with a colourful array of scientifically tweaked peppers, sweetcorn, potatoes and onions, in Europe the situation was very different.
A series of food scares, including an outbreak of BSE via British beef during the 1980s and 1990s, had left people – and politicians – far more wary.
Amid pressure to tightly regulate the rapid growth of GM produce on the one hand, and pleas not to stymie innovation on the other, EU regulators designed a legal compromise. Regulation 258/97, which first came into force on 15 May 1997, created a new legal instrument for what it classed as ‘novel foods’.
Applied to any foods that hadn’t been commonly consumed prior to the introduction of the regulation, it required manufacturers to jump through additional regulatory hoops, proving through a series of rigorous tests and trials they were safe to be sold on supermarket shelves.
Though changes in EU law have since meant GM foods are governed under a different set of regulations, the novel foods mechanism remains in place. Now everything from chia seeds to CBD and edible insects – even certain rapeseed oils, are classed as novel foods, subjecting them to all the additional safety protections that come with the definition.
But with the UK now outside the scope of EU regulation, what could that mean for the future of this long list of novel foods? More specifically, given the contentious nature of some foods classed as novel, could UK regulators use Brexit as an opportunity to ditch the sometimes conservative approach of the EU, and encourage a new influx of foodie innovation?
Six months on from the UK’s exit from the EU, the UK has opted to remain fully aligned to EU law – as with almost all areas of food and drink regulation. Any foods listed as novel foods as of 31 December 2020 were carried over into UK law on 1 January 2021 when Brexit took full effect.
“Government is acutely aware of the negative press some of these ‘Frankenfoods’ have received in the past”
It’s a somewhat predictable response from a government looking to make things as easy as possible, points out Dominic Watkins, head of retail, food and hospitality at law firm DWF. “It’s probably not top of the list of things to fix right now.”
Though politically seamless, this option isn’t without its logistical difficulties. That’s partly because even the same over-arching regulations now require interpretation and application at a national level, points out Sian Edmunds, partner at law firm Burges Salmon. “There will be two entirely separate committees considering applications and so, even when applying the same guidance, they could result in different decisions,” she says.
Plus, there’s the challenge of shouldering the extra administrative duty that comes with executing EU principles without the support of bodies like the European Food Safety Authority (EFSA).
Take CBD, which acquired novel foods status as of January 2019 while the UK remained an EU member state, but which required companies to apply formally via in-depth dossiers by March 2021, when the UK had formally exited the union. The result appeared to be a significant backlog for the Food Standards Agency to work through, with the government opting to allow products to remain on sale while it worked through authorising applications.
“The biggest thing we’ve found is the time things are taking with novel foods,” says Susie Macarthur, group chief operations officer at CBD company Tenacious Labs.
“Potentially that’s a result of Brexit, and the logistical challenges that come with having everything in place for all the appropriate testing.” She and the company are supportive of ongoing regulation for CBD as a novel food product in principle – “we very much believe regulation is a positive thing, I think the consumer deserves that” – but “sadly the challenge we have here is the time it’s taking. Meanwhile there are still unregulated, less effective products sitting on shelves because of the length of time it’s taking to go through the novel foods process.”
As well as delays, some novel foods players are complaining of a lack of clarity. Those in the edible insect sector, for example, say it remains unclear whether or not transitional measures operating at the EU level continue to apply post-Brexit. These measures allow companies to continue selling insects without full novel foods status, so long as they had submitted applications before January 2020.
Despite repeated emails to the FSA seeking to clarify whether or not their edible insects are still compliant, Tiziana Di Costanzo, co-founder of Horizon Insects, says she hasn’t received a clear answer. “I’ve talked to my insurer, which provides public and product liability insurance, and the fact we don’t know if the product is now legal or not means they might not be able to insure us from November. It’s a total mess, a total shambles.”
When contacted by The Grocer, an FSA spokesman did say: “It remains the case insects are considered a ‘novel food’ and need to be authorised. The FSA welcomes applications under the novel foods regulations for edible insects. To date, only two such applications have been received in this area.” The transitional period that allowed companies to continue selling without novel foods status has “elapsed”, he adds. “The FSA is conducting its own review into whether the transition measures can continue for those businesses who applied to the EU before January 2020.”
“There are still unregulated, less effective products sitting on shelves because of the length of time it’s taking to go through the novel foods process”
Whatever happens on insects, a lack of clarity on exactly how EU principles will be applied more broadly across the novel foods sector is already adding costs and hassle to the businesses involved, argues Macarthur of Tenacious Labs.
“Unfortunately, this lack of clarity has left a gap where there are many people pretending they are novel food experts charging huge amounts of money to advise businesses in this space,” she says. “Whereas if they could have a more direct conversation with regulators I think it would benefit the industry, the bodies and businesses wanting to do the right thing much more, rather than this lack of transparency.”
It’s likely all these are teething issues, though – the result of integrating complex laws that had been managed at an international level into domestic law. In the longer term, managing novel foods at a national level creates the opportunity to streamline the entire process, believes Burges Salmon’s Edmunds. “The UK regulator now has the benefit of only having to look at the UK market and in practice only has to take account of UK political and societal pressures, rather than making decisions with reference to what has happened or is happening in the numerous EU member states. In theory this should enable the UK regulator to take a more streamlined and agile approach to decision making.”
Change of direction
Significantly, this means, as well as diverging from the EU at a practical level, there’s also plenty of opportunity for a different political bent to laws that currently govern new or emerging areas of food and drink.
There are already signs the FSA is toying with the idea of change. In the second wave of questions sent out as part of its ‘Food and You’ survey, the government organisation quizzed consumers on their attitudes towards existing novel foods, such as CBD.
It followed an earlier report in 2019 that tested levels of awareness of novel foods status across the public. The FSA has insisted this isn’t an indicator of its desire to change the law. “There are no plans at present to alter the regulations,” says an FSA spokesman. “This is an opportunity to increase our understanding of consumer views.”
But though no move has been made yet to make a change to the over-arching EU principles, there is reason to think the UK may adopt a more permissive approach. “Historically, it’s been the approach of the UK government to be more open to products that might generally fall within the scope of novel foods,” says Watkins. “If you go back 20 years and look at GM, the UK was more permissive in relation to that generally speaking than the EU, but had to follow EU regulation. Now we have the opportunity to do something slightly different, though whether they choose to take it is another question.”
It could see the UK reflect more closely the approach of the US, for instance, where the threshold for approval of novel foods can be slightly lower. “There’s no doubt in the US it encourages more innovation in this space, which is frankly why we acquired a manufacturing plant in the US, because things move much faster there,” says Macarthur at Tenacious. “That being said, we’re also in conversations with some manufacturing partners in the UK who are moving much more in that direction, while still working closely with regulators.”
The two types of novel food applications
Any foods that haven’t been widely consumed in the UK or EU before May 1997 may need to apply for novel foods status. This includes foods created via new processes, such as cultivated meat, or foods eaten elsewhere in the world, such as chia seeds.
There are two routes: traditional food notification and full application.
Traditional food notification: This is a simplified route that applies to foods or products with 25 years of continuous use by a significant number of people outside the UK or EU. The process should take no more than four months.
Full application: These applications require in-depth information, from details of production processes, to absorption and excretion data, nutritional information and toxicity. Most applications take at least a year to process.
Doing so could pave the way for quicker commercialisation of the next wave of innovation, including cultivated meat. Last month, a US startup in this space – Finless Foods – said the UK and EU were currently last in the queue for international product launches as a result of their restrictive regulatory framework. Currently, “there doesn’t seem to be a path to market at all” for cultivated meat, said co-founder Michael Selden, despite the likes of Singapore granting approval for the first such products in 2020.
If the UK does want to nurture promising areas of innovation like lab-based meat, there are two important things the government will need to consider in any deviation from EU law, points out DWF’s Watkins. First, the EU remains its biggest trading partner and the approval of products that can’t be sold to EU export markets might lack any real value in the short term.
And second, “as much as it’s politically attractive, and exciting to say we’re open for innovation, the government is also acutely aware of the negative press some of these ‘Frankenfoods’ have received in the past. They’re acutely aware if they get this wrong, it’s counterproductive.”
After all, 24 years after public concern on the safety of GM foods first sparked the creation of the novel foods mechanism, attitudes are still divided. In a 2020 survey by industrial tech company Northern Connectors, 44% of UK adults said they would characterise their perceptions of GM as negative, and 52% said it would leave them less likely to pick a product off the shelf.
“We don’t know if the product is now legal… it’s a total mess, a total shambles”
“It is pretty tricky,” says Edmunds. “The UK takes food safety seriously and there has clearly been pressure in the context of Brexit to ensure high standards are maintained. I see opportunities for the faster-track ‘traditional foods’ application process to be used more effectively for foods like insects, but there are still quite burdensome scientific evidential hurdles for businesses to jump.”
Brexit creates an opportunity for the UK to set itself apart from the sometimes conservative approach of the EU toward novel foods. But it’ll need to do so with awareness that a break from the political union doesn’t mean a break from the public attitudes that inspired novel foods regulation in the first place.
Edible insects, CBD, lab-grown meat: why Brexit is great news for weird foods
- Currently reading
Edible insects, CBD, lab-grown meat: why Brexit is great news for weird foods