In December 2007, the Food Standards Agency (FSA) concluded that mandatory restrictions on trans fats should not be imposed.

Legislation to limit the level of trans fats in food has been introduced in New York and in Denmark, and the key question for the FSA in the UK was whether regulatory action was required. At its meeting on 13 December, the FSA’s board decided to recommend to UK health ministers that voluntary measures to reduce trans fats in food are resulting in such low consumer intakes, that mandatory restrictions are not necessary.

The FSA’s practical approach to this issue is very welcome to the food industry. Instead of suggesting yet another piece of legis- lation, the FSA has made a practical recommendation, based on detailed scientific advice and liaison with the industry. It has established, first of all, that the level of trans fat consumption is lower in the UK than had been the case in North America and Denmark and, secondly, that all parts of the food industry are already in the midst of substantial and successful action to reduce the trans fat content of foods. If only there were more occasions when the answer on an issue such as this was "regulation is not necessary"!

Apart from the extra burden that regulations always create for industry, there would have been a further complication in this particular case had the FSA recommended the introduction of new legislation. Such a move would have had an impact on free trade between the member states of the European Union, since manufacturers in other countries might have needed to reformulate in order to meet UK standards. The European Commission challenged the Danish regulation on exactly that basis but, after investigation, it was held to be justified and was allowed to stand.

However, a similar regulation in the UK would have required separate assessment, because the health justification for inter- fering with free trade would only be established if the actual level of dietary consumption in the UK was a cause for medical concern and other methods of dealing with this, such as voluntary action, were failing. What is more, the effect of a second European country introducing regulations on this issue would have been to significantly increase the risk of country after country following suit, with each imposing different limits and methods of control. This would fragment the market and cause major problems for manufacturers.

There are obvious parallels with the doubts that arose earlier this year on the safety of certain artifical food colours in food for children, following the publication of research by Southampton University. There was a widespread call in the UK for legislation, but the government was reluctant to legislate on the issue, because there was the risk of a challenge under European single market law. Instead, the matter was referred for consideration at EU level. n

Owen Warnock is senior partner and food law expert at inter- national law firm Eversheds