UK: Brexit, Pre-Packed Food Products And Food Business Operators

Brexit has brought about significant changes to the foods industry with dramatic impacts across the sector. Aside from new border controls, declarations, registrations, listings and customs requirements, the rules on labelling must also be adhered to.

We have recently advised a number of our clients in connection with the labelling processes for exporting pre-packed food products from Great Britain (GB) to the European Union (EU) and to Northern Ireland (NI).

From the 1 January 2021, labels on pre-packed food products have needed to include: 
(a) the origin of the pre-packed food product; (b) health and/or identification marks; and (c) any other mandatory information such as relating to farming methods and marketing standards. Each label must also include the name and address of a food business operator (FBO) established in the EU – who will be responsible for the pre-packed food products in the EU. Here, it is important that the name and address of the FBO is genuine and substantive enough to enable the FBO to be contacted directly, quickly and easily concerning any issue arising from their product and to allow enforcement notices to be served if necessary.

We understand that where a GB business does not have an establishment in EU or NI (as appropriate), it will need to either: (a) set up in EU or NI (as appropriate); or (b) find an importer to take responsibility for the pre-packed food products including the presence and accuracy of the food information on the label presented to the consumer in the market.

When putting in place an agreement with an importer to act as your FBO, it is important to include provisions setting out how your representative will deal with regulatory authorities as well as the consumers that buy your pre-packed food products. The documentation must clearly set out the FBO's obligations and responsibilities. For example, you will want to ensure that: (a) your representative gives notice of correspondence received as soon as reasonably practicable; (b) your representative doesn't admit liability or attempt to settle any complaint; and (c) your representative co-operates with you to resolve any complaints, queries or other issues. 

As you would expect, an FBO will want to obtain appropriate contractual protection from you. We have recently seen representatives request wide ranging 'hold-harmless' provisions in this context. Where this is the case, it is important to ensure that the indemnities are drafted to fairly apportion the risks. This will be different in each case as much will depend on the factual and commercial relationship.
Finally, the document must clearly set out what will happen on termination. It is vital to avoid a position where you have to replace the labelling on pre-packed food products after they have been produced and packaged.