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Brexit: Johnson is right but mainly wrong

2019-07-19 07:31:04

I didn't want to get embroiled in the Johnson "kippergate" affair, not least because when the Oaf pronounces on EU regulation, he almost invariably gets it wrong, as he famously did with his claims about bananas during the referendum campaign.

That much I expected once more with his claim in the final hustings of the Conservative party's leadership contest on Wednesday evening, when he held aloft a vacuum-packed kipper that had come from a fish smoker on the Isle of Man, whom Johnson said, was "utterly furious". 

"After decades of sending them through the post", Johnson averred on his behalf, he had had his costs "massively increased by Brussels bureaucrats" who are insisting that each kipper must be accompanied by a plastic ice pillow. "Pointless, pointless, expensive, environmentally damaging 'elf and safety'", the MP declared.

Had it been left there, there would have been little point – or interest – in pursuing the issue much further. Food safety regulation does indeed require temperature control of certain mail order foods, but the requirement is hardly onerous.

The disposable ice packs cost pennies, and are used to protect a premium product which retails at more than twice the price of a supermarket equivalent. It makes absolute sense to invest a tiny sum to ensure that mail order products reach their customers in peak condition, minimising growth of food poisoning and spoilage bacteria.

Even if it wasn't a legal requirement, this is one of those provisions which traders would adopt automatically. It gives consumers the confidence to use distance selling to buy high-risk, perishable food and has facilitated the massive boom in online food sales – the slight increase in costs more than compensated for by increased sales.

On the face of it therefore, this was another bit of Johnson hyperbole, the man venting his ignorance and prejudice about the nature of regulation, playing to the crowd. So it went: to cheers and laughter of the party faithful, he roundly declared: "We will bring the kippers back. It's not a red herring".

But what gives this story "legs" is yesterday's extraordinary intervention from European Commission food safety spokesperson, Anca Paduraru. To the delight of the gullible hacks - who, as always, suspended their critical faculties and believed everything they were told - she advised them that Johnson had got it wrong.

Said Paduraru: "The case described by Mr Johnson falls outside the scope of EU legislation and is purely a UK national competence". Then she asserted: "When it comes to the specific case mentioned, while the food business operators have an obligation to meet the microbiological requirements, the safety requirements to ensure the safety of its food, the sale of products from food business operators to the final consumer is not covered by the EU legislation on food hygiene".

Further adding to her case, she informed the hacks that: "There are strict [EU] rules when it comes to fresh fish, but these kinds of rules don't apply to processed fisheries products. I'm talking about temperature and the exact case he was explaining".

What is so remarkable about this though is that, at several levels, the Commission spokesperson was completely wrong. Covering the production and sale of mail order products is a raft of food safety law, almost all of it of EU origin. And it is certainly not the case that the sale of products from food business operator to the final consumer is not covered by the EU legislation on food hygiene. This is demonstrably not true.

The EU's "hygiene package" – most of which covers the sale of food to the public - starts with the General Food Law Regulation, Regulation (EC) No 178/2002, moves on to Regulation (EC) 852/2004 on the hygiene of foodstuffs, takes in Regulation (EC) No 853/2004, laying down specific hygiene rules on the hygiene of foodstuffs, and winds up with Regulation (EC) No 854/2004 on official controls on products of animal origin. For the purposes of the law, animals include fish.

The primary area where the Commission spokesperson falls down is in making a simple definition error, relating to the application of Regulation (EC) No 853/2004 which sets the temperature control rules about which Johnson so vitriolically complains.

The error made is in taking the provision of this regulation which allows, under certain conditions, Member States to adopt "national measures to apply the requirements of this Regulation to retail establishments situated on their territory".

This wrongly assumes that the Isle of Man suppliers are  retail operations, thereby exempting them from EU law and allowing produce to be subject to "national measures". But, as is evident from one of the suppliers' websites, these are producers selling directly to the consumer, representing a wholly different situation. "National measures" will not apply and operations must be subject to EU law.

Nevertheless, the Commission may also be relying on an exemption from Regulation (EC) No 853/2004 which applies to: "the direct supply, by the producer, of small quantities of primary products to the final consumer or to local retail establishments directly supplying the final consumer". In that case also, national rules apply.

However, it will be noted that the exemption applies only to "primary production" which, according to Regulation (EC) No 178/2002, means "the production, rearing or growing of primary products including harvesting, milking and farmed animal production prior to slaughter. It also includes hunting and fishing and the harvesting of wild products".

With this fairly tight definition, it is quite clear that "fishery products" as defined by Regulation 853/2004 include product which, themselves, are not primary products. The definition covers "all seawater or freshwater animals (except for live bivalve molluscs, live echinoderms, live tunicates and live marine gastropods, and all mammals, reptiles and frogs) whether wild or farmed", but it also includes "all edible forms, parts and products of such animals". The products of such "animals" would encompass processed foods such as kippers but these do not conform with the definition of primary products.

As to the temperature requirement during transport, this is where it gets complicated. Although 853/2004 does specify a temperature for "fresh fishery products", requiring them to be maintained "at a temperature approaching that of melting ice", this does not apply to processed foods such as kippers.

For temperature guidance, therefore, one must refer to Regulation (EC) No 852/2004 on the hygiene of foodstuffs which sets out a general requirement for food businesses "carrying out any stage of production, processing and distribution of food" to comply with "temperature control requirements for foodstuffs".

The criteria which have to be met, however, may not be set out in any specific laws but in formal guides approved by the Standing Committee on the Food Chain and Animal Health, in accordance with statutory procedures. This is part of the long-standing comitology process.

These are supplemented by informal guides, such as this produced by ESSA for "smoked and/or salted and/or marinated fish.

This code is actually fairly recent, dating from 2010 and sets a storage/transport temperature of 4ºC which takes account of recent work on the proliferation of Listeria Monocytogenes in smoked fish. While not having direct legal effect, such guides are taken as "deemed to satisfy" in that food businesses maintaining that temperature will be deemed to be complying with the law. It is from this that the requirement for ice packs probably stems.

Very often, of course, industry guides are elaborated in EU guidance and in national rules. Currently English and EU requirements (despite the latter having direct effect) are implemented by the Food Safety and Hygiene (England) Regulations 2013, with equivalent legislation for the devolved administrations. Specifically, this gives power to the Secretary of State to issue codes of recommended practice, which apply the "deemed to satisfy" principle, with the initial requirement in terms of temperature control mandated by 852/2004.

That has been the case with mail order foods, with the UK's Food Standards Agency producing an official guide on the hygiene of mail order food, in force since 2007. It notes that "perishable foods" are defined as those that are required by law, for food safety reasons, to be kept chilled or refrigerated.

Interestingly, it cites the applicable law as Regulation (EC) no. 852/2004, and in particular Article 4.3 which requires the compliance with temperature control requirements in order to maintain the cold chain. And, within that regulation is a requirement for national hygiene guides to be produced, conformity with which "must be taken into account when assessing compliance with legislation. We come full circle.

Thus, while the Commission spokesperson talks about "national rules" as if they were something separate, standing clear of Union law and entirely under the control of the Member State, they are actually an integrated part of a complex system which involves multiple agencies, trade associations and national bodies. 

Yet, any rules or guides must be directed at implementing the EU's hygiene package and be compatible with it. Furthermore, they must be submitted to the Commission for approval before they apply. They are, therefore, determined by the framework of EU law, even if there is some flexibility afforded in the wording. Effectively, even "national rules" are EU mandated. The Commission can't simply walk away from this, trilling "it's local". That's not how the system works.

And before we leave this, one needs to be aware of the of the origins of Johnson's kipper – the Isle of Man. And although the IoM is within the customs union, it is not part of the Single Market. Therefore, Regulation (EC) No 854/2004 on "official controls" applies, which has its own provisions on temperature control. Without it being stated directly, this may apply special provisions to IoM produce.

Finally, I am troubled by the lack of any definition of "direct sale". Exploring EU sources has proved time consuming and unrewarding. But, in respect of retail exemptions, we see a requirement for "marginal, localised and restricted activity".

The notion stems from the observation that retail establishments supplying the final consumer as their main trade should in effect trade their products locally (even if the destination is in another Member State) and so "are not engaged in long distance trade which requires more attention and supervision in particular as regards transport and cold chain conditions".

It seems to me, without being able to pin it down, that direct selling also might not accord with the aim of EU law, which is intended to grant exemptions only to "short food chain" operations, where a more relaxed view of temperature control can be taken.

It would be interesting to get clarification on this point, but I have always taken direct selling as a requirement for the producer physically to place the goods directly in the hands of the consumer. In any event, it would be unlikely that the commission would approve any national rules that had no provision for temperature control of mail order foods.

For all that, though, in the context of Johnson's outburst, none of this really matters. Whether national or EU law, there exists a perfectly reasonable and sensible provision requiring perishable mail order foods to be kept chilled. This is in the interests of producer and consumer alike, and is unlikely to change with Brexit.

In that, Johnson may be right on a technicality that the EU Law (in part) does require chilled kippers – for once, wrong-footing the Commission - but he is wholly wrong in criticising an essentially sensible measure.

Revised and extended as of 12 am.