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Derogation for foodstuff based repellents and attractants - Updated August 2016

Foodstuff based repellents and attractants

This page provides information on the changes and regulatory requirements introduced on 30 October 2014 under EU BPR Review Regulation (Regulation 1062/2014) for products which have received a food and feed derogation in the UK.

Introduction

As the Biocide Review programme was considered to be having negative effects on substances that were not really intended to be controlled by this  legislation (eg Strawberry jam to attract wasps to traps), the EU Commission allowed under Article 6 of Fifth Review Regulation (Regulation 1451/2007) for temporary derogations to be provided for repellent or attractant biocidal products in which the active substance was food or feed, with the aim to address their status under the revision to the Biocidal Products Directive (BPD), the EU Biocides Regulation 528/2012 (EU BPR). 

Agreed EU position for foodstuff based repellents and attractants

Following the entering into force of the EU BPR, and discussions between the European Commission and EU Member states, the agreed EU position is that food or feed which is made available on the market only as food or feed, but which is used as an attractant/repellent, would be outside the scope of the BPR.  However, products that are made available on the market for repellent/attractant use would be within scope, even if they consist entirely of food or feed. 

Therefore, all products made available on the market as attractants or repellents are within scope of the EU BPR (even if they consist of food or feed grade material).

A person obtaining a product supplied as food or feed and subsequently using it themselves as an attractant or repellent (e.g. someone buying  strawberry jam from the local supermarket and using it in a trap to attract wasps in their home and/or garden) would not be in scope of the EU BPR.

Products holding a UK food and feed derogation

Products in receipt of a food and feed derogation in the UK are considered to be within scope of the EU BPR, as they are all made available on the market with the intention that they have a repellent or attractant action.

The EU BPR Review Regulation (Regulation 1062/2014) entered into force on 30 October 2014, and the BPD Fifth Review Regulation (Regulation 1451/2007) was repealed on this date.   The repeal of the Fifth Review Regulation meant that after 30 October 2014 it was not possible for the UK to grant any new food and feed derogations.

Transitional provisions

The EU BPR Review Regulation introduced the possibility of supporting 'existing' active substances (i.e. on the market as an active substance in biocidal products on 14 May 2000) for assessment in the EU BPR active substance review programme. 

Article 16 of the EU BPR Review Regulation provided an option to declare an interest to notify a substance (which is eligible) for inclusion in the review programme by 30 October 2015.  The declaration and the next step, notification process, to support food and feed active substances is explained in more detail on our ‘active substance eligible for inclusion in the biocides active substance review programme’ webpage.

Active substances declared

Based on the information provided by the EU Commission, a number of active substances in products that held UK food and feed derogations were declared by the 30 October 2015 deadline. These declarations are being considered by the EU Commission.

Existing products that held a UK food and feed derogation containing these declared active substances can continue to be made available and used in the UK, as long as the declaration is formally accepted and the next steps in the process are followed i.e. notification and dossier submission.

Please note that in the UK no new products containing a declared food or feed substance can be made available or used in the UK.

Our food and feed products database has been updated to highlight which products contain declared active substances(s).

Active substances not declared

Based on the information provided by the EU Commission, a number of active substances in products that held UK food and feed derogations were not declared by the 30 October 2015 deadline. In line with Article 21(1) of the EU BPR Review Regulation these products cannot be

Our food and feed products database has been updated to highlight which products contain active substance(s) not declared and lists the above phase out dates.

Supporting food and feed substance(s) as new active substance(s)

It is possible to support the food and feed active substance(s) for assessment as a new active substance, and if following assessment of the dossier of information presented, a decision was taken to approve the active (or include it on Annex I of the EU BPR), it would then be necessary to seek authorisation for the product. 

However, for a new active substance the biocidal product containing it cannot continue to be made available on the UK market beyond the 30 October 2016 transitional deadline given in the Article 21(1) of the EU BPR Review Regulation if the active had not been approved (or included on Annex I of the EU BPR) following a full assessment of the data provided, and a product authorisation sought by that date.

Details of the active substance approval process and the simplified active substance process (inclusion into Annex I) under the EU BPR are outlined in the EU BPR section of our website.

Reformulating to a supported active substance(s)

Companies may choose to reformulate the product to contain a non-food and feed active substance(s) which is either still being evaluated for Product Type 19, or has been approved for Product Type 19 or included on Annex I of the EU BPR. 

Please note the transitional provisions of the EU BPR Review Regulation only apply to existing food and feed repellents/attractant i.e. the product formulation and use that received the derogation under Article 6 of The Fifth Review Regulation (Regulation 1451/2007).

If a company chooses to reformulate to a supported food and feed active substance(s) this would be considered to be a new product, and the transitional provision of the EU BPR Review Regulation would not apply to this product. No new products containing food or feed substance(s) can be made available or used in the UK until they obtain an appropriate product authorisation under the EU BPR.

EU BPR Simplified Product Authorisation

Annex I to the EU BPR is a list of active substances that can be used in biocidal products that are eligible for the Simplified Product Authorisation. Our Simplified Product Authorisation webpage outlines the application process as outlined in Article 25 and 26 of EU BPR.

Some products that received a UK food and feed derogation contain an active substance(s) that is included in Annex I (list of Simplified Active Substance lists) to the EU BPR. These products may be eligible for Simplified Product Authorisation.

If Simplified Product Authorisation is granted the biocidal product could be made available on the UK market from the date of authorisation, or where the product has already received a Simplified Authorisation in another EU Member State, 30 days after the company notify HSE it intended to make the biocidal product available on the UK market.

Updated 2016-10-13