UK and EU Regulatory Divergence in Food Law: Challenges and Opportunities Post-Brexit

On 19 May 2025, the UK and EU signed a "Common Understanding" (the "EU Reset"). This agreement risks unwinding not only Brexit-related trade frictions, but also those more positive developments, and introduces yet further uncertainty to the market.

This article considers (1) UK regulatory optimisation post-Brexit,(2) UK regulatory innovation since Brexit, and (3) how these advances could be impacted by the EU Reset.

(1) Regulatory Optimisation:

Following Brexit, the Food Standards Agency (alongside Food Standards Scotland, together referred to as the "FSA" in this article) has taken over responsibility from the European Food Standards Authority ("EFSA") for the approval of regulated food and feed products in Great Britain.

The FSA has identified opportunities to act more nimbly and take advantage of the UK's different cultural attitude to technological risk, while maintaining consumer safety.

The FSA's first reforms came into force from 1 April 2025 through the Food and Feed (Regulated Products) (Amendment, Revocation, Consequential and Transitional Provision) Regulations 2025 (the "Reform SI"):

(i) Removal of the need for renewal authorisations

The Reform SI removes the EU-inherited requirement that regulated food and feed products (such as smoke flavourings, feed additives, and genetically modified organisms) be re-authorised every ten years. Instead, approved regulated food products will now benefit from an on-going approval unless adverse safety evidence emerges, in a similar way to food additives and novel foods.

According to the FSA, renewals made up around 22% of their regulated products caseload and were expected to rise to 50% in the coming years. By removing the blanket 10-year renewal requirement, the Reform SI aims to allow the FSA to refocus resources, while retaining and expanding its powers to re-evaluate authorisations if new information emerges.

(ii) Removal of the need for statutory instruments

The Reform SI also streamlines the authorisation process for regulated food products by removing the need to implement FSA recommendations via statutory instruments ("SIs"). Currently, after conducting a risk assessment and making a recommendation, the FSA must wait for an SI to be laid before Parliament to bring the authorisation into effect. This step adds months to the approval process.

Following the Reform SI, ministerial approval will be published in a public register and have immediate legal effect.

(iii) Regulatory sandboxes:

The FSA has also begun to develop means of expediting its approvals process in dealing with novel foods. This year, the FSA launched the "Cell-Cultivated Products Regulatory Sandbox and Innovation Hub", which over its two-year course, aims to facilitate regulatory approval of innovative products. Eight (already-selected) participating businesses will gain privileged access to the regulator, while the regulator will be able to collect data, develop best practices, and develop its thinking on approvals for cell-cultivated products.

(2) Regulatory Innovation

The regulation of genetic technologies is one of the clearest examples of the opportunities presented by post-Brexit UK-EU regulatory divergence.

The 2024 UK Genetic Technology (Precision Breeding) Act (the "Precision Breeding Act") now excludes gene-edited organisms from the EU-inherited Genetically Modified Organisms ("GMO") regime if their genetic changes could have arisen in any event through traditional breeding methods (so-called "Precision Bred Organisms" or "PBOs").

Under the new UK regime, PBOs are subject to a lighter-touch system based primarily on notification rather than full pre-market authorisation. There are no mandatory labelling requirements for PBOs, which is a notable point of difference from the EU approach.

While the EU is consulting on reforms that may move it in a similar direction, its proposals currently apply only to plant PBOs, not animal PBOs. In contrast, the UK regime currently also only covers only plants but expressly leaves the door open for future inclusion of animals.

(3) The UK-EU Common Understanding

The EU Reset politically commits the UK and EU to negotiating a Sanitary and Phytosanitary ("SPS") Agreement. The Common Understanding explains that:

"26. In terms of its material scope, the SPS Agreement should cover sanitary, phytosanitary, food safety and general consumer protection rules applicable to the production, distribution and consumption of agrifood products, the regulation of live animals and pesticides, the rules on organics as well as marketing standards applicable to certain sectors or products.

27. Within the scope defined above, the SPS Agreement should ensure the application of the same rules at all times by providing for timely dynamic alignment of the rules applicable to and in the United Kingdom acting in respect of Great Britain with all the relevant European Union rules, giving due regard to the United Kingdom’s constitutional and parliamentary procedures; and where necessary to ensure the European Union’s level of food, sanitary, and phytosanitary safety, through the immediate application of the relevant European Union rules.

…

31. The United Kingdom should have appropriate access to relevant European Union agencies, systems and databases in the areas covered by the SPS Agreement."

There are very good reasons for an SPS agreement to be put in place. UK exports of food products to the EU have fallen due to regulatory friction; and agri-trade is one of the major issues in on-going intra-UK trade between Great Britain and Northern Ireland.

However, if food safety standards are to be aligned, it is not yet clear what that will mean for the UK's ambitions and steps already taken towards becoming a more dynamic, streamlined, and business-friendly regime, including the new PBO regime.

In practice, an SPS Agreement could take a number of years to negotiate and come into force, but that period will be marked by uncertainty for businesses seeking to invest in the UK's new PBO Regime.

We understand MPs are already asking questions on this subject, and the industry will certainly hope for some clarity to be given by government in the coming months.

Our team

Fieldfisher's life sciences and food and beverage lawyers advise, and where necessary litigate on behalf of, leading businesses around the world. 

If you would like to discuss any of the issues raised in this blog, please contact Taly Dvorkis or Roland Scarlett.