Food Supplements (England) Regulations 2003

Statutory Instrument 1387

A report concerning the Standing Committee debate and vote to transpose the EU Food Supplements Directive into English law, with associated background material.

Prepared by Paul Anthony Taylor [email protected]

Introduction

One of the most controversial aspects surrounding this Standing Committee meeting was the allegation that the Labour Whips, and in particular Jim Fitzpatrick MP (Vice-Chamberlain of Her Majesty's household), had “packed” the Committee and removed from it those Labour MPs who were intending to vote against the legislation. Evidence to back up this claim first began to emerge on Tuesday 1^st July, two days before the Standing Committee meeting itself.

Following my receipt of these allegations I was contacted on Tuesday 1^st July by David Cooper, a campaigner known to me. David told me that he had had a phone-call from Kate Hoey MP, one of the original members of the Committee, and said that Kate had told him that she was very supportive of the campaign to oppose implementation of the legislation. Moreover, she informed him that because she was going to vote against the bill she had been removed from the Committee.

It was with this background in mind that I made the trip to London on Wednesday 3^rd July, to accompany Lord Duncan McNair on his lobbying and attend the Standing Committee meeting as a public observer.

Wednesday 2nd July

Upon our arrival at Westminster we spoke briefly to Earl Howe, who informed us that the Opposition had not imposed a three-line whip on the vote in the House of Lords on Monday 30^th June. Earl Howe went on to say that this made the Lords victory even more impressive, and that a turnout of over two hundred in the Lords for a debate that was held during the dinner hour was quite remarkable.

Once we reached Central Lobby it became immediately apparent that there was indeed a concerted attempt underway to “pack” the Committee and remove from it those Labour MPs who were intending to vote against the legislation. Furthermore it also became clear that the new Committee would not be named until Thursday morning, which gave lobbyists virtually no time to contact them.

Despite these difficulties however Lord McNair succeeded in obtaining an updated list of the new Committee members at around 5.30pm in the afternoon.

The list of Committee members was now as follows (new members marked as NEW):

Charlotte Atkins (Staffordshire Moorlands, Labour) NEWJeremy Corbyn (Islington North, Labour)Ross Cranston (Dudley North, Labour) NEW
Geraint Davies (Croydon Central, Labour) NEW
Mrs Cheryl Gillan (Chesham and Amersham, Conservative)
Chris Grayling (Epsom and Ewell, Conservative)
Mr William Hague (Richmond Yorkshire, Conservative) NEW
Dr. Evan Harris (Oxford West and Abingdon, Liberal Democrat)Miss Melanie Johnson (Welwyn Hatfield, Labour)
Miss Julie Kirkbride (Bromsgrove, Conservative)
Jim Knight (South Dorset, Labour)
John Mann (Bassetlaw, Labour) NEW
Mr Paul Marsden (Shrewsbury and Atcham, Liberal Democrat)
Mr Gwyn Prosser (Dover, Labour)
Mr Geoffrey Robinson (Coventry North West, Labour)
Claire Ward (Watford, Labour) NEW

As can be seen, the Labour Party had by this time replaced five of its original committee members, four of whom had previously signed Early Day Motions calling upon the Government to take urgent action to address the serious problems brought about by the Food Supplements Directive. With regard to the Conservatives replacing David Treddinick with William Hague, it is notable that when Lord McNair spoke to Treddinick on the internal House of Commons telephone line he was completely unaware that he had been replaced. He was very angry about this; which was quite understandable as he has long been a supporter of the natural health movement.

Dr. Robert Verkerk and David Hinde of the Alliance for Natural Health had provided us in advance with briefing documents for distribution to the sixteen Committee members. Lord McNair's assessment at this stage was that because of the lateness of the hour we should concentrate our efforts upon ensuring that the documents were delivered immediately to the offices of the sixteen MPs, rather than waste time attempting to arrange meetings with them. He was also concerned at this stage as to whether some of the Labour Party Committee members might change again overnight. A further complication also arose in that many MPs were attending the Rhodes scholars centenary celebration in Westminster Hall, at which Nelson Mandela, Bill Clinton and Tony Blair were speaking. After we had relabelled the briefing documents with the new Committee members' names in Central Lobby, Lord McNair managed to deliver them just in advance of a Division Bell sounding in the Lobby at 7pm. This then done, Lord McNair decided that there was nothing more that we could do that evening, and I retired back to my hotel.

Thursday 3rd July

Upon arriving at the House of Commons Lord McNair made immediate enquiries as to the latest news regarding the membership of the Committee. The list that we obtained, shortly before 1pm, showed two further changes to the list that we had obtained the previous evening; namely that Mrs Cheryl Gillan (Chesham and Amersham, Conservative) had been replaced by Mr Mark Francois (Rayleigh, Conservative), and Mr William Hague (Richmond Yorkshire, Conservative) had been replaced by Mr David Tredinnick (Bosworth, Conservative).

At around 1.30pm Lord Mcnair spoke to Dr. Evan Harris (Oxford West and Abingdon, Liberal Democrat) by telephone, who informed him that he would not be attending the meeting because he had “an engagement in Harrogate that came up at the last minute”. At this point it was not clear who, if anybody would be replacing Dr. Harris. Whilst there is no evidence to doubt the explanation for his absence, it is notable that following the debate in the House of Commons on January 20^th Dr. Harris voted for both the Opposition motion (division 57) and the Government amendment (division 58). Bearing this fact in mind it is very difficult to ascertain what Dr. Harris' voting intentions would have been had he actually been in attendance at the Standing Committee meeting.

The Standing Committee meeting

The meeting was held at 2.30pm in Committee Room 12 at the House of Commons. The fourteen (14) Committee members present were:

Charlotte Atkins (Staffordshire Moorlands, Labour)
Jeremy Corbyn (Islington North, Labour)
Ross Cranston (Dudley North, Labour)
Geraint Davies (Croydon Central, Labour)
Mr Mark Francois (Rayleigh, Conservative)
Chris Grayling (Epsom and Ewell, Conservative)
Miss Melanie Johnson (Welwyn Hatfield, Labour – Junior Minister for Health)
Miss Julie Kirkbride (Bromsgrove, Conservative)
Jim Knight (South Dorset, Labour)
John Mann (Bassetlaw, Labour)
Mr Paul Marsden (Shrewsbury and Atcham, Liberal Democrat)
Mr Geoffrey Robinson (Coventry North West, Labour)
Mr David Tredinnick (Bosworth, Conservative)
Claire Ward (Watford, Labour)
Mr Win Griffiths (Bridgend, Labour) was the Chairman
Dr. Harrison was the Clerk.

The following MPs also attended, but were not allowed to vote:

Mr. Graham Brady (Altrincham and Sale, West, Conservative)
Kate Hoey (Vauxhall, Labour)
Dr. Brian Iddon (Bolton, South-East, Labour)
Mr. Andrew Turner (Isle of Wight, Conservative)
Mr. David Wilshire (Spelthorne, Conservative)

The meeting opened with Chris Grayling raising a point of order in relation to the removing of at least two Labour Members from the Committee against their wishes because they said that they would support the prayer against the directive. Mr Grayling asked whether the Chairman had the ability to make representations through the Chairmen's Panel about the propriety of such actions, and whether he know of rules that might show the Government that such behaviour is unacceptable. The Chairman replied that there was nothing that he could do about the situation and that such moves should be made through the usual channels. He added that the Junior Health Minister (Miss Melanie Johnson) could discuss it further in the Whips Office, if she so wishes. David Wilshire then asked the Chairman could he express his concern to the Government “at their yet again showing another example of their jackboot approach and determination to stamp on this place and parliamentary democracy, if any honourable Members so much as say that they have doubts about the Government's dictatorial attitude” and continued by asking the Chairman would he “ask the Government to return to a belief in democracy and to behave themselves?” The Chairman replied that this was not a point of order, and that the debate on this matter should be ended.

Chris Grayling opened the debate proper by saying that the views of thousands of people throughout the country who have signed petitions and made seemingly endless representations to hon. Members and Ministers are not being listened to. Not only that, he said, but “their views are being treated with complete contempt and disdain by the Government and the Labour party, with some honourable exceptions.” Mr. Grayling continued by reminding the Committee that when the matter was brought to the House of Commons in January 2003 through early-day motion 278, which was signed by 220 MPs, not one Labour Member who had previously signed the early-day motion was willing to back the issue when it came to the House. “It is tragic,” he said “that the directive will have a significant impact on patients, businesses and a significant sector of our society and economy.”

He continued by describing the effect that the directive will have upon the list of nutrients that we can currently buy from health food shops and supermarkets, saying that of the products currently on sale in this country, nearly 300 nutritional sources and nutrients have been excluded from the approved list. “That matter” he went on “combined with the likely developments over the maximum permitted level for nutrients in vitamin tablets, which is to be decided over the next few months and years, forms the heart of the dispute.” He also emphasised that this meeting represented one last chance for the House to express its will, and stated that the UK should be “sending out a message that we will not accept overbearing, unnecessary regulations from Brussels that force businesses to abandon their products for no good reason and deny our people the freedom of choice that they have a right to expect.”

Mr. Grayling then issued a direct challenge to the Junior Health Minister, Miss Melanie Johnson, asking her could she name one item on the list of almost 300 substances that is unsafe and what steps she was taking to remove that substance from the shelves immediately.

Miss Johnson was silent at first, and then replied that she saw no point in selecting individual points to reply to and that she would not respond to a challenge thrown down to oblige her to argue a position.

“In reality” continued Chris Grayling, “the products are not unsafe.” He went on to say that “the policy is all about harmonisation, not about public health” and that “there is no evidence of a significant health problem in respect of supplements.” Mr. Grayling continued by saying that it “remains the case that we are vastly more likely to suffer significant adverse health effects from a conventional regulated, tested, prescribed drug than from a food supplement.” He also stated that the tone of the American legislation (DSHEA) is markedly different from the Food Supplements Directive, and that it is “as deregulatory as possible, and it is encouraging and supportive of the supplements industry.” The same cannot be said, he went on, for what is happening in Europe. Following on from this Mr. Grayling made the point that whilst the Government talk about medical evidence their regulatory impact assessment states that there is no UK system for recording adverse reactions to food supplements. “On what evidence” he then asked, “are the arguments based?” The truth is, he said, that patients will not gain from the action and that many of them will lose.” Chris Grayling then went on to read out some of the emails that he had received from consumers that morning, all of which were asking him to vote against the food supplements directive being taken into law in the UK.

Carrying on from this, Mr. Grayling explained that the only way for the products to remain legal is for the manufacturers to submit a complex dossier to a special committee at a cost of many thousands of pounds. He further stated that the industry has said that in most cases it simply cannot afford to do this. The economics do not add up. The Government admitted last year, he said, that the initial estimate for the cost of putting together a dossier ranged between £80,000 and £250,000 per product. “Even at the lower end of that estimate” he continued “we are talking about a cost to the industry of £24 million to register all those products.”

He then expanded upon the matter of the maximum permitted levels of nutrients, saying that this will be not a safety decision, but a harmonisation decision, and again asked the Junior Health Minister (Melanie Johnson) whether she could tell him which of the products that are currently on sale are unsafe. On this occasion Melanie Johnson did not even bother to reply.

“Why” asked Chris Grayling “are we allowing laws imposed by the European Commission to take from people in this country the choice that they have freely exercised for years?” He also said that Holland and Barrett have stated that “several companies working on dossiers have now abandoned the project because the costs are prohibitive, particularly in those cases where clinical trials would need to be commissioned.”

Asking the Junior Health Minister whether she has visited a health store and seen the products that will disappear as a result of the regulations, Mr. Grayling went on to say that it is striking how many legal, safe products that are available to the public today will be removed from the shelves by this ill-thought-out European directive.

“It is clear that the Government have not looked after UK interests” he continued, and yet “they refer in written answers and statements to a best achievable deal.” Continuing on this theme he said that he had read a written answer the previous night that had talked about the Government pressing for an urgent meeting with the European authorities on the issue of the maximum level of nutrients in vitamin tablets. “Why are they pressing for an urgent meeting?” he asked. “Why did not those discussions take place months ago? Why have the Government not sorted things out? Why have they not looked after the future interests of our producers and patients; those who choose to buy such products?”

Julie Kirkbride then added to Chris Grayling's arguments, saying that people who want to buy these products in the future will go onto the Internet and order them from America. “A whole business sector in the UK economy will be lost,” she said.

Chris Grayling agreed with Julie Kirkbride, saying that the internet will expose UK consumers who seek to buy nutrients to the risk of obtaining them from unsafe sources, and that this may have a negative, not positive, effect on health. His view, he said, was that people and businesses in the UK are being “sold down the river” by the directive. “It is surely possible” he went on “to negotiate a position in which a product that is sold legally in the UK can continue to be sold here.” Expanding on this theme, he suggested that if we need a regulation that the UK cannot export their products overseas; that higher dose products produced in the UK are for the UK only; then so be it. Is it necessary, he asked, in order to achieve European harmonisation, to say to producers that they may not legally sell the products in future that they are selling safely today, unless they spend thousands of pounds to secure the right to do so? “That is a breach of a fundamental right,” he said.

Jeremy Corbyn then asked Chris Grayling whether he had any thoughts about how the directive came about, and whether he thought that there may have been pressure from the pharmaceutical industry wanting to limit the market to itself, thus removing an independent, popular sector from the shelves.

Chris Grayling replied by saying that “there are always interest groups involved in processes, and that those have particular perspectives.” He went on to say that he personally was more concerned that the European authorities, and those in the UK, appear to be walking away from the principle of ''innocent until proved guilty''.

He then asked the Junior Health Minister to withdraw the regulations, saying that there is work to be done to reduce the impact of the directive, and that it need not happen today. If we were in another European country, such as France, he said, “we would not be rushing the regulations through; not if it were directly against the interests of French companies. We would be doing our damnedest to fight to ensure that the directive did not have that impact and to delay it for as long as possible.”

Mark Francois agreed with this, saying that if the Government are pressing for an urgent meeting with people across the channel to discuss the matter further, then “surely it makes logical sense not to implement the directive until the meeting has taken place, discussions have occurred and we know the outcome.”

Chris Grayling replied by saying that he hoped that the Minister would take away with her from the debate the wish of the Committee, and that the Government will reopen negotiations with the Commission about ways to add to the permitted list. “The Government should insist that maximum permitted levels for nutrients in vitamin tablets are based one hundred per cent. on safety” he said “and not on the need to harmonise with other countries.” He also stated his belief that the Government “should explore ways of amending the regulations so that UK products can be sold in the UK subject to the current rules and so that products that are legally and safely on sale today are not excluded from the marketplace.”

Finishing his statement to the Committee, Chris Grayling said that the Junior Health Minister needs to be extremely careful what she says about safety because her views are listened to outside of the House, and reminded her that she had said two days previously that the products in question are unsafe. “I do not believe that to be the case,” he said. He also reminded the Junior Health Minister that she had said that the regulations were based on safety, and that she had implied that if products were not on the permitted list it was for reasons of safety. “That is not a responsible way in which to portray the issues surrounding the directive” he told her. Chris Grayling then said that the Committee should reject the regulations, and urged the House of Commons, the Standing Committee and the Government to “throw the directive out and go back to the drawing board.”

Jeremy Corbyn then stood up, and asked the Chairman whether it was within the power of the Committee and the Government to simply withdraw the regulations so that they could be discussed further and submitted in a different form later. The Chairman's reply was that the Junior Health Minister had heard these comments. (She remained seated, and did not speak).

Dr. Brian Iddon spoke next, saying that although he was not a member of the Committee and did not have a vote he felt strongly about the issue. He stated that he was against the regulations, but that he wanted to make it clear right from the beginning that his comments were not really a criticism of the Government, “but of the way in which the European Union behaves in making directives that interfere with strong traditions and culture in one of the member countries.” That is what it is doing, he said, by trying to impose these regulations on Britain.

Dr. Iddon said that as far as he could see the European Union was trying to harmonise trade in vitamins and minerals right across its member states. He found this to be strange, he said, because the majority of companies in this country are completely against harmonisation when it comes to Britain losing out, as it will if the regulations are implemented.

He went on to remind the Committee that the Food Supplements Directive is only one of two European directives that will change the face of the industry in Britain forever if they are implemented. Together, he said, the Food Supplements Directive and the Traditional Herbal Medicinal Products Directive will cost jobs and may even result in the closure of firms, especially the many small firms that are engaged in the industry.

The other place (the House of Lords) had discussed the regulations three days previously, said Dr. Iddon, and had rejected them. He also reminded the Committee that a petition totalling one million signatures had been presented to the House of Commons, and that this was one of the biggest petitions presented to the House in recent times.

“There are many people out there” he went on “who feel very, very strongly on this issue. It is highly controversial.” He also reminded the Committee that on 4th December he had tabled an early-day motion on the food supplements directive, and that the official record shows that 220 MPs had signed it.

Dr. Iddon then explained that the Food Supplements Directive was drawn up on the basis of continental, Napoleonic law, under which everything is forbidden unless expressly permitted. This is in contrast, he said, to British common law under which everything is permitted unless expressly forbidden. “That is why” he went on, that “a positive list of nutrients and nutrient sources is appended to the regulations rather than a negative list of banned ingredients.” He then further explained that the positive list originates from the PARNUTS directive (Foods for Particular Nutritional Purposes Directive), and that it was considered to be totally inappropriate by the industry for inclusion in the Food Supplements Directive. Dr. Iddon then went on to recount some of the anomalies that the positive list system would bring about, saying that safe and popular nutrients such as Magnesium Ascorbate, Selenium Yeast and Selenomethionine would all be banned under this directive. Selenium Yeast and Selenomethionine are the predominant forms of selenium, and are found in plants such as broccoli. The industry uses those organic forms of selenium, he said, because they are better absorbed by the stomach. But the positive list includes only the element selenium; he went on, which is hardly absorbed from the stomach at all.

Because of its origin in the PARNUTS directive, said Dr. Iddon; the positive list has a strong emphasis on inorganic chemicals rather than on the organic chemicals found in natural products. This is crazy, he said.

Turning his line of criticism to the UK Government, Dr. Iddon said that the Government had implied all along that they have secured a substantial derogation from the regulations that will allow existing products to remain on the market in the United Kingdom. “That is not how the industry sees it,” he said. “The Government have argued that all is not lost for the British industry, because it will be able to continue to sell its products until the end of 2009.” He then went on to point out that sales will be permitted only if acceptable safety dossiers are submitted to the European Scientific Committee on the Safety of Food by 12 July 2005.

Moving on from this, Dr. Iddon explained that the other problem that he has with the regulations is that there is no indication of what the permitted dose levels are likely to be. “If the Committee votes through the regulations this afternoon” he continued “they will in my opinion be voting for the unknown.” It is highly likely, he went on, that the levels will be set far below the levels now permitted for use in the UK.

“The daft thing about the regulations” he said “is that our constituents will buy the lower dose tablets at an extremely elevated price and then take several tablets in order to get what they were taking previously.” He then asked the Junior Health Minister to “consider whether it is better to have the safe products that have so far been on sale in Britain, or whether our constituents would be safe if they bought products of an unknown constituency and purity from any country in the world via the Internet?”

In closing, Dr. Iddon said that the Government should be requested to go back to the negotiating table in Brussels in order to seek an amending directive, so that the UK industry can survive as it is now. He then urged all of the Committee members to reject the regulations, as had already occurred “in the other place” (the House of Lords).

Paul Marsden stood up next, and paid tribute to all MPs who have shown their opposition to what he called “these ridiculous regulations.”

Telling the Committee that each day he takes 1,000 mg of vitamin C and large quantities of Zinc, he said that these regulations could have implications that meant he could no longer buy the quantities that he would like. He appealed to the Government to withdraw the regulations, saying that they must have a rethink. The Government must do the right thing, he said, because millions of people will soon not be allowed to take these products unless they go outside of this country to purchase them.

Like Dr. Iddon, Paul Marsden said that he was not there to start bashing the European Union. Nor was he, he went on, there to have a go at the pharmaceutical industry. The blame, he believed, lies fairly and squarely with the Government. “There is no reason” he said “why the Government cannot negotiate an amending directive that would allow member states to permit domestic market products which are recognised by the competent authority, in our case, the Food Standards Agency, to be labelled as safe and appropriate. Those products would then be outside the restrictions. The Government could do that, but they are choosing not to and prevaricating for months on end. It is time for them to face up to the fact that there is overwhelming public opposition.”

Mark Francois then spoke, saying that it was unfortunate that only one Liberal Democrat was present when they could have had two votes by fielding a second person. He then asked Mr. Marsden whether he agreed that the Government do not have to pass the regulations and that there is no overriding reason why they should? “It is within their gift to withdraw them and bring them back after further negotiation” he said. “They can do that if they choose.”

Paul Marsden replied by saying that Dr. Harris, the other Liberal Democrat, could not be there because “he had an engagement in Harrogate that came up at the last minute.”

“Some Committee members” he continued “in particular Labour ones, will have to look their constituents in the eyes and say that they believe in all this. I do not believe for one second that Labour Members believe in the regulations. They know that they are potty.” He then went on to agree with Mark Francois that “the Government could withdraw the regulations and that there is no reason why we should continue with them.” He carried on by pointing out that the Minister could say at any moment that she would like to withdraw the regulations. “She chooses not to” he said “because the Government want to railroad them through.”

Mr. Marsden then described how other nutrients that will be banned, including boron, sulphur, vanadium, tin and germanium, are commonly used and found in some 5,000 products on the UK market. For Holland and Barrett, he said, this equates to something like £6 million of sales. From a market of about £450 million, he said, an enormous £22.5 million