Food allergen labelling consultation launched following high profile inquest

BCL partner, Richard Reichman and solicitor, Suzanne Gallagher consider the effects and implications of the newly launched consultation on food allergen labelling.

Following a number of recent fatalities and concerns raised by the Coroner in his report relating to the tragic death of Ms Ednan-Laperouse, the Department for Environment, Food and Rural Affairs (Defra) and the Food Standards Agency (FSA) have launched a consultation on food allergen labelling.  The consultation focuses on allergen labelling of food which is prepacked for direct sale (‘PPDS’) i.e. packed, before a customer orders, on the same premises from which it is being sold e.g. sandwiches made in an on-site kitchen and displayed in a chiller cabinet.

Food business operators currently need to label prepacked food (i.e. food put into packaging off-site before being offered for sale, e.g. supermarket ready meals and chocolate bars) with a full list of ingredients and allergens (see The Food Information Regulations 2014 (‘FIR’) and Regulation (EU) No 1169/2011).  However, this is not necessary for PPDS food (estimated to be sold by around 8,000 businesses).  For PPDS food, it is acceptable for such information to be provided to customers by any means, including orally, for example by using ‘ask about allergens’ notifications to prompt customers to request the information (FIR, Regulation 5).  A 2018 survey of young people with food allergies and intolerances led by the FSA revealed that only 14% of respondents felt extremely confident asking for allergen information while 14% felt not at all confident.

The consultation is focussed on strengthening the current regime relating to the provision of allergen information for PPDS foods, to address concerns which have been raised regarding the different rules applicable to prepacked and PPDS foods and the potential difficulty for consumers to distinguish between the two.  A consumer may not know that a prepacked sandwich in a supermarket is subject to a different set of rules than a PPDS sandwich in a shop with an on-site kitchen, particularly where they are both similarly presented in packaging in a chiller cabinet.

It is noteworthy that the consultation does not affect the position regarding non-prepacked food, for example a sandwich packed on the sale premises after a customer orders, which is currently subject to the same rules as PPDS food.

The consultation proposes four options for reform of the current regime relating to PPDS foods: 1) promoting best practice (i.e. no legislative change); 2) mandating “ask the staff” labels on the packaging with supporting information for consumers provided in writing; 3) mandating name of food and allergen labelling on the packaging; or 4) mandating name of food and full ingredient list labelling, with allergens emphasised, on the packaging (as is currently required for prepacked foods).  The possibility of combining options or applying different options to different size business in a two-tiered approach is also put forward.

Given the prevalence of food allergies (it is estimated that 1-2% of adults and 5-8% of children in the UK have a food allergy, equating to around 2 million people, and there has been a 500% increase in hospital admissions for food allergies since 1990), our insatiable appetite for eating out and recent high profile incidents, careful consideration of options for reform is to be welcomed.  The 2018 FSA survey of young people with food allergies and intolerances also found that 60% of respondents had avoided eating out due to their condition in the previous six months.  It is undeniable that measures to alleviate this restrictive situation will be attractive.

Whilst the most onerous regulatory requirements can, at first glance, appear desirable, the consultation sensibly asks for opinions on various issues in order to weigh up the pros and cons of each option.  This approach is designed to avoid unintended consequences, such as a risk of accidental mislabelling incidents (with trust in labels potentially discouraging dialogue with staff), limiting consumer choice or prohibitive expense.

While popular high street names may be able to absorb the cost of introducing comprehensive labelling (Pret has already committed to voluntarily adopt full ingredient labelling), it is likely to be more challenging for smaller independent businesses.  In his report following Ms Ednan-Laperouse’s inquest, the Coroner noted that the current exclusion to provide allergen information for PPDS foods applied to food businesses “whether they prepare a small number of items in local shops or in the case of Pret, over 200 million items for sale by preparing these items in ‘local kitchens’”.  This observation is reflected in the consultation which questions whether a tiered approach, subject to the size of the business, may be appropriate.  This could be a sensible approach if the regulatory burden on smaller businesses would be disproportionate although, unless it is made clear to consumers, confusion could still remain i.e. it may be unclear whether a business selling PPDS food is sufficiently large to be caught by the more onerous labelling requirements.

Although promoting best practice in the absence of regulatory change may not be deemed to go far enough, encouraging businesses and consumers “to review their knowledge, skills and actions to ensure a safer environment” would likely be of assistance in conjunction with other proposed regulatory measures.  Seemingly robust regulation is unlikely to provide effective safeguards for consumers without also promoting the necessary skills and awareness.

The consultation (further detail can be found here) closes on 29 March 2019.

 

Authors:

Richard Reichman is a partner specialising in corporate crime, financial crime and regulatory investigations. He is recommended by The Legal 500 for his “extensive experience” and being “extremely thorough and appreciat[ing] the big picture issues”. He has experience in a broad range of regulatory offences, such as health and safety (generally following major or fatal incidents), environmental, food safety, fire safety and trading, as well as financial offences such as fraud, bribery, insider dealing and money laundering. Richard is involved in cases involving cybercrime (for example, computer-specific offences such as hacking) or a technological dimension. He has acted for victims of cybersecurity breaches and advises regarding data protection issues falling within the scope of the Information Commissioner’s Office.

Suzanne Gallagher is a solicitor specialising in corporate crime. Since qualifying in 2016, she has gained experience in a variety of regulatory and criminal investigations including health and safety, environmental protection, fire safety, fraud and money laundering. Prior to joining private practice, Suzanne worked in facilitating regulatory harmonisation in the European Union and in promoting international legal standards at the United Nations. She also worked in the pharmaceuticals industry in Tokyo.