The relationship between the UK and the Republic of Ireland (ROI) came into sharp focus recently, as US President Joe Biden visited ROI.  Biden’s visit coincided with the 25th anniversary of the Belfast (Good Friday) Agreement 1998 (GFA) which brought an end to 30 years of Troubles in Northern Ireland (NI).  The UK government will have welcomed the fact that President Biden described the Windsor Framework (WF) as one of two pillars (along with the GFA) which are key to future peace and prosperity in NI.  The WF is also fundamental to the recent improvement of the tripartite UK-EU-ROI relationship.

The Northern Ireland Protocol (NIP) was part of the UK’s withdrawal from the EU and sought to square the circle of respecting the GFA, whilst maintaining NI’s place in the UK Single Market. But the Unionist community in NI felt the NIP left NI being treated differently from the rest of the UK – a feeling which led to the 2022 suspension of the Stormont Assembly. The negotiation of the WF demonstrated a new and welcome willingness of the UK and the EU to negotiate mutually acceptable solutions to some of the problems created by Brexit (even if the WF has not (so far) achieved one of its objectives of re‑starting power-sharing at Stormont).

What has Changed under the WF?

The WF addresses a number of the difficulties with the NIP — including arrangements for medicines, cross‑border transport of plants and pets, and the power of the NI Government to raise objections to EU legislation that applies in NI (the “Stormont Brake”).  The WF also creates a “Green Lane” (for agri‑foods being traded only into NI) and a “Red Lane” (for agri‑food products ‘at risk’ of leaving the UK’s Single Market and being traded into the EU’s Single Market).  Green Lane goods will be required to carry  new labelling stating ‘not for sale in the EU’ and, in comparison with the checks on such goods required under the NIP, Green Lane goods will be subject to reduced customs checks and procedures.

Since the WF is only a “Framework” agreement, both the UK and EU will need to pass implementing legislation and guidance for companies operating in NI, GB and the EU on how the “Not for EU” labelling proposals will work in practice. 

EU Legislative Proposals

The EU has published a Proposal for a Regulation on NI Sanitary and Phytosanitary Measures (2023/0062(COG) (“EU Agri‑Food Proposal”).  This EU Agri‑Food Proposal only covers goods which move from GB to NI.  It does not cover goods which are exported directly from GB to ROI (for example, via Dublin), nor does it apply to goods originating in ROI and moving to NI, or to GB.

The EU Agri‑Food Proposal would require that, with effect from 1 October 2023, almost all agri-food products (except those products which are sold loose/by weight and products sold in restaurants for consumption on the spot) will need “Not for EU” labels on the product box, on the shelf (i.e. next to the price tags) and on posters around the products in the retail premises. 

In addition, most unprocessed products will eventually require individual “Not for EU” labels.  The requirement for individual labelling will be introduced gradually — starting with meat and prepacked dairy goods.  The labelling requirement will not apply to goods which are not subject to official controls and EU border control posts (primarily processed products; some exotic fruits; and some shelf-stable agricultural products).  But these products will still need a “Not for EU” label at box and shelf/poster level.

The EU Agri‑Food Proposal envisages the reduction in the number of border checks currently required under the NIP for goods moving from GB to NI over a period of time and sets out redress for the EU should the UK authorities fail to inspect the required percentage of goods, or fail to ensure that “Not for EU” goods do not end up in ROI.  In either case, the EU will be entitled to suspend the WF labelling and checks rules, and revert to the identity check requirements set out in the NIP.

UK Implementation

On 13 April 2023, DEFRA issued updated guidance for the export or movement of food, drink or agricultural products from GB to NI.  DEFRA’s guidance echoes, albeit imprecisely, the EU requirement that goods exported from GB to NI which are not for onward shipping to the ROI are labelled.  DEFRA’s suggested wording for the product label is “These products from the United Kingdom may not be sold outside Northern Ireland”.

Whilst the UK government has released a number of papers including recommendations and decisions of the Joint Withdrawal Committee, it has not (so far) put forward any draft legislation of equivalent detail to the EU Agri‑Food Proposal.  The best indicator of the UK government intentions around implementation is set out in its WF policy paper, “The Windsor Framework: A new Way Forward”.

Importantly, one section of the UK’s policy paper suggests that all goods sold anywhere in the UK will have to be labelled “Not for EU” to ensure consistency across the whole of the UK’s own internal market.  This would be a significant expansion of the WF requirement.  Paragraph 23 on pages 11 and 12 notes that:  

“A subset of high-risk products such as meat, dairy and other composite products will be labelled at a product-level on a phased basis through to 2025, in line with the proposals [the UK government set out in its] July 2021 Command Paper.  Those labelling requirements will first be introduced on meat and fresh dairy from October 2023, with the Government providing transitional reimbursement funding during this first phase. From October 2024 these requirements will be extended to include all other dairy products, such as UHT milk and butter, and would be proposed to apply UK-wide from that point, in consultation with the Scottish and Welsh Governments. From July 2025, composite products, fruit, vegetables and fish will also be labelled on a UK-wide basis” (emphasis added).

Comment:

If implemented, this requirement would have a significant impact on companies producing agri‑food goods in the UK/GB.  All such goods would have to be labelled “These products from the United Kingdom may not be sold outside Northern Ireland” (or whatever wording eventually settled on by the UK government).  If companies also sold their goods outside the UK, then, to enable the sale of their products into the EU (for example), the company would be obliged to have two different labelling processes: one with the required UK labelling, and one without.

Covington’s food and drink regulatory teams in Dublin and London are monitoring these changes and developments very closely and would be delighted to talk to clients or other companies concerned about the implications of these new labelling requirements.