This page provides information on the changes and regulatory requirements introduced on 30 October 2014 under the EU Biocides Review Regulation (Regulation 1062/2014) for products which have received a food and feed derogation in the UK.
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).
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 placed 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 placed on the market for repellent/attractant use would be within scope even if they consist entirely of food or feed.
Therefore, all products placed 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. using some strawberry jam to attract wasps to a trap) would not be in scope of the EU BPR.
Products currently 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 placed on the market with the intention that they have a repellent or attractant action.
The BPD Fifth Review Regulation allowed products in receipt of a food and feed derogation to be placed on the market until 14 May 2014, but as Regulation 1451/2007 had not been replaced by that date the UK took the pragmatic decision to allow such products to remain on the UK market until 31 December 2014 by which time it was anticipated that the discussions on the replacement to Fifth Review Regulation, the EU BPR Review Regulation, would be completed.
The new EU BPR Review Regulation has been agreed (Regulation 1062/2014) and entered into force on 30 October 2014, and the Fifth Review Regulation will be repealed on this date. The repeal of the Fifth Review Regulation means that after 30 October 2014 it will not be possible for the UK to grant any new food and feed derogations.
The EU BPR Review Regulation has transitional provisions for products in receipt of a food and feed derogation allowing them to remain on the market for a period of time after the application of the Review Regulation, and also the possibility of supporting 'existing' active substances (ie on the market as an active substance in biocidal products on 14 May 2000) for assessment in the review programme.
Article 21(1) of the EU BPR Review Regulation allows Member States to continue their current system or practice of making available on the market and using biocidal product that have received a food and feed derogation until
Article 16 of the EU BPR Review Regulation provides in relation to products currently in receipt of a food and feed derogation, until 30 October 2015, for any persons with an interest to notify, to provide a declaration to support the active substance for the appropriate product type to the European Chemicals Agency (ECHA).
The declaration and 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.
Please note - Under the declaration and notification process you will need to demonstrate that the active substance in the product was an ‘existing’ active substance within the meaning of Article 3(1) d of EU BPR i.e. 'a substance which was on the market on 14 May 2000 as an active substance of a biocidal product’.
If the biocidal product in receipt of a food and feed derogation contains an active substance that meets the definition of an existing active substance, which is declared for notification by 30 October 2015, and then notified to the timescale laid out in Article 16(5), then the biocidal product can continue to be made available on the UK market after 30 October 2016 whilst the evaluation of the active is ongoing.
However, if the biocidal product in receipt of a food and feed derogation contains an active substance that doesn’t meet the definition of an existing active substance, then the substance would be considered to be a ‘new’ active substance. If by 30 October 2016 the new active substance has not had an application made which has been assessed and approved, and an appropriate product authorisation sought, then the product could not be made available after that date, and existing stocks would need to be used by 30 April 2017.
In view of the amount data required to support an active substance for approval, or inclusion on Annex I of EU BPR, as well as the amount of time required for the assessment of this data to be carried out, potential applicants for substances that do not meet the existing active substance criteria would be advised to begin work on seeking approval/Annex I inclusion at the earliest opportunity.