*** please note – this article refers to the position of the FSA and FSA board between 1st Jan 2021 and July 2022. In July 2022, after the BBC set out to expose the scandal on BBC News, the FSA finally admitted the mistake. It then launched a slapdash consultation that does nothing to address the long term needs of UK insect businesses. ***

We think that the European regulations on Novel Food, which include edible insects regulations, contain ambiguities. Measures within the Novel Food Regulation, designed to protect businesses, have been interpreted by the FSA and FSS in a way which is the most unfavourable to the development of the edible insect industry in the UK.

The FSA/FSS have consulted with the lawyers and concluded these measures have expired, plunging the industry in disarray.

We let you decide.

Regulation (EU) 2015/2283 of the European Parliament and of the Council on novel foods
“2. Foods not falling within the scope of Regulation (EC) No 258/97, which are lawfully placed on the market by 1 January 2018 and which fall within the scope of this Regulation may continue to be placed on the market until a decision is taken in accordance with Articles 10 to 12 or Articles 14 to 19 of this Regulation following an application for authorisation of a novel food or a notification of a traditional food from a third country submitted by the date specified in the implementing rules adopted in accordance with Article 13 or 20 of this Regulation respectively, but no later than 2 January 2020.”

The corresponding implementing regulation COMMISSION IMPLEMENTING REGULATION (EU) 2017/2469 for the above states:

“5. The deadline for the submission of the applications referred to in Article 35(2) of Regulation (EU) 2015/2283 shall be 1 January 2019.”

The FSA/FSS have interpreted the above edible insects regulations as follows:
– Submit an application by the 1st January 2019
– Stop trading on the 2nd January 2020 if your application has not been approved

But, wait a minute, what if it took the EFSA more than 12 months to process an application? Also, now that the decision rests with the UK, how could the FSA/FSS possibly make a decision by the 2nd January 2020 on dossiers UK businesses were not even aware they had to submit ? Why were we not told that relevant scientific data already in the possession of the EFSA prior to Brexit would be ignored moving forward ?
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Below are the responses to the questions we put to the FSA Board on 15th September 2021.
Good afternoon,
Can I please ask the board the question outlined under point 5, regarding edible insects. The question refers to a complex issue, hence I felt it was necessary to provide some background and context to the question.
Thank you for your comprehensive set of comments and questions on edible insects. They have been addressed individually by the responses after each question to help your understanding.

1. Background

EU regulation – “REGULATION(EU) 2015/2283 Article 35(2)” – protects a business already selling lawfully, as long as an application has been submitted by the date specified in the “COMMISSION IMPLEMENTING REGULATION (EU) 2017/2469 Article 8(5)” – 1st January 2019 (but in any case by 2nd January 2020). The cut-off date for application was therefore 1st January 2019, and the protection continues until such time as a decision has been taken on the application. This Regulation has been retained in UK law.

Retained EU law made no provision for a transition from the EU to the GB novel foods authorisation regime. There is no legal basis for allowing unauthorised novel foods to remain on the GB market simply because they were covered by Article 35(2) under EU law and were therefore able to remain on the EU market pending conclusion of the EU authorisation process. If edible insects were not authorised in the EU before the end of Transition Period then, in the GB market, they are regarded as unauthorised novel foods and would require an application to be submitted and then be authorised in order to be in compliance with the legislation.

2. Trading before the end of Brexit Transition

Under the above Regulation, UK companies were legally trading Yellow Mealworms (Tenebrio molitor) and House Crickets (Acheta domesticus), thanks to the applications – without data protection provisions – submitted by The Belgian Insect Industry Federation (BIIF) to the EFSA in September 2018, i.e. before the deadline required by the EU.

This has been covered above under the reply to point 1

3. Declarations by the FSA

Without having consulted with businesses, the FSA on 31st December 2020 published on its website that after Brexit
. the UK would follow the EU Novel Food classification of edible insects.
. an application would have to be submitted in the UK.
. the authorisation process was “likely to be at least a year”.
On 23rd August 2021 it further issued guidance [URN : PLGEN21022], declaring of the Regulation that “These transitional measures ended on 2 January 2020”.

With the UK leaving the EU it has been clearly and regularly stated that the FSA, along with Food Standards Scotland, would be responsible for the process of managing regulated products applications and making recommendations to Ministers. The development and preparation of the process has been discussed in various forums, covered on our website and presented at on line webinars leading up to the guidance being released at the end of the Transition Period to be ready to take over the system on 1st January 2021. As we have retained the EU law the timings of the process remain the same set out in legislation of up to nine months for risk assessment (longer if information is incomplete) followed by up to seven months for the risk management aspects.
Edible insects are considered novel food under retained Novel Foods Regulations EC 2015/2283. This covers any food that was not used for human consumption to a significant degree within the EU or the United Kingdom before 15 May 1997, irrespective of the dates of accession of Member States. Without this history of consumption, they remain novel and must be authorised before foods can be placed on the market. Applications must be submitted to the regulated products application service. Authorisation follows the processes and requirements set out in the implementing regulations, guidance on this can be found on the FSA web page.

4. Errors in the FSA’s declarations

4.1
How could the FSA announce (on 23rd August 2021) that the protections under “REGULATION(EU) 2015/2283 Article 35(2)” had ended 19 months before announcing this ?!
This is illogical.
4.2
The Regulation in any case contradicts this, as explained above – it states that protection continues until a decision has been taken on the application.
Please see response to Q1 for these two questions.
4.3
As the FSA states that the authorisation process is “likely to be at least a year”, in order to continue selling legally without interruption, a business would have had to submit an application in the UK around 1 year before the 2nd January 2020, i.e. by around 2nd January 2019. That is, almost 2 years before this was announced by the FSA !
This is illogical. Furthermore, the UK was still in the EU at this point.

Edible insect businesses were able to submit applications to the EU under the Novel Food Regulations. If they had been authorised before the end of the Transition Period then this would have been reflected automatically in UK law. If this did not happen they will need authorising through the GB system for the GB market. As yet we have not had any supported applications for edible insects to the regulated products system.

5. My question

When will these errors be rectified ? Because of them, businesses have been made illegal, are freezing investments, or are shutting down.
The Novel Food Regulations were retained from EU law. The valid conditions set out in the regulations remained. These included the definitions of what novel foods are and what is required to have these novel foods authorised. There are no errors to correct. The opportunity for the edible insect industry to apply for authorisation for the GB market was available from the 1st January 2021 and the FSA has offered help in doing so and has discussed with parts of industry well before the system transferred from the EU to the UK.