A lot of legislative change was announced in 2023, but very little actually came into force. Many policies, particularly those that were contentious or connected to sustainability issues, have seen implementation dates pushed back to 2025. Topics like Deposit Return Schemes (DRS), promotions of high fat, sugar and salt foods (HFSS), amongst a raft of other things, fall into this category. This might mean that 2024 becomes a transition year in the UK. However, this seems unlikely as other measures will be progressed in the interim.
As 2024 commences, almost every area of regulation has seen significant change in the last 12 months, or at least is in the midst of a significant proposal for change.
For instance, even the relatively stable health and safety world has seen a continued trend for the government to commence inquiries, and this year we finally saw the COVID inquiry getting fully underway and the Grenfell Inquiry reaching its later stages. The biggest change flows from the Grenfell Inquiry and the impacts of the Building Safety Act which will continue to reverberate through 2024, especially as cladding gave way to RACC as the new building issue of concern.
In food safety, allergen management continued to be a hot topic and an area in which enforcement action continues to occur. 2019 and 2022 both saw high profile preventing future deaths reports following the Celia Marsh and Owen Carey deaths Since then, there have been campaigns for changes to the law of which Owens law, to mandate allergen labelling for non-prepacked foods and specifically menus, remains a possibility and also featured as a topic of discussion in the Food Standards Authority's (FSA) December 2023 Board Meeting. The topic came back into the new in January with another high profile allergen inquest taking place. More recently, we have been seeing questions regarding the interface of food and classical safety law, as well as when and if RIDDOR reporting obligations and section 3 duties of the Health and Safety at Work Act might apply. While the two regimes should remain separate, this is a topic that could use clarification.
Novel food remains ripe for change and the FSA may try to push forward proposals to reform regulated products, or may just choose to be more generous in permitting products to be sold while novel food applications are ongoing - similarly as it did for CBD and is currently doing for certain edible insects.
For more insights also see our Global Consumer Trends 2024 article 'Future of food'.
As we closed out 2023, there were some small but significant changes still happening. One in particular is the potential for a new offence in the Criminal Justice Bill, which creates an offence for a corporate entity where a senior manager commits an offence. As currently drafted, this covers all legislation and is designed to avoid challenges around the identification principle. It also appears to be focussed on the classic establishment of corporate liability in mens rea rather than actual or pseudo strict liability offences. While novel in many areas, this is the inverse of the classic position in much of safety consumer protection legislation, which binds a director, manager or secretary when the offence of the company was committed as a result of their consent, connivance or attributable to their neglect.
Entering 2024, the EA will truly get an opportunity to test its new extended civil penalty powers and adoption rate will be something to watch, as will be whether the removal of penalty caps will truly see fines increase. 2024 is also a year where many other regimes will try to adopt these penalties as a cheaper route to regulation.
In the product safety world, 2024 should see greater clarity on what the next steps of the Product Safety Review will be, with the government response to the 2023 consultation due in the spring. The early insights into the consultation responses suggest that they were broadly in favour of the proposals, including for regulation of market places, but more information is required. It seems unlikely that any very substantive change would occur before the next election. The proposals would rather see the potential for a complete re-writing of the product safety regime, although the details remain to be seen. It appears that there is a desire to set out a framework Act with powers and enforcement, and then there is a need for additional common or sector specific duties on a risk based basis. However, the precise shape remains unclear at this stage. It is more likely that 2024 could see some quick wins and adjustments to the existing regime rather than wholesale change.
At EU level, 2024 will see the EU General Product Safety Regulation come into force in December and we should see the final versions of the associated product liability and AI directive too. The change in general product safety will increase distributor duties and include obligations to verify for all product categories caught, rather than just a limited number of categories. Hopefully, it will see a transition towards a new Machinery regime and a new toys regime agreed.
Early 2024, will also give greater clarity on several of the key pieces of EU legislation that have not yet been finally agreed. From the Corporate Sustainability Due Diligence Directive (CS3D), which is nearing completion and publication of the final legal text, to changes to the Unfair Commercial Practices Directive to outlaw certain types of green claims, and the Packaged Goods Waste Regulation which also nears the final legal text. Altogether with a handful of others likely to be completed before the EU elections in June and will fire the starting gun on a range of parallel transition periods.
If one considers the EU's work programme, it is clear that there is not so much as a thread of sustainably, closer to a river of measures flowing through a huge range of topics: from waste; food durability indications (to reduce food waste); green claims; sustainable food systems which will regulate food green claims and govern food systems more generally; to packaging and extended producer responsibility; wider DRS; and many other issues beside.
The EU's 2024 work programme still has 154 pending proposals, with 26 proposals and initiatives to rationalise reporting obligations and 16 evaluations or fitness checks of existing laws. To avoid proposals being left behind, there is only a very limited number of new initiatives which really aim to complete the work already started in 2023. Moreover, with the 154 proposals that need to be competed and to become law, there will be a vast amount of laws coming forward in early 2024.
If you have any questions or would like to discuss any of these topics and what they mean for you and your business, please get in touch with our Consumer sector and Regulatory experts.
