Foodservice faces fresh allergen uncertainty

Experts are split over a requirement for out-of-home businesses to provide written allergen information for non-prepacked foods. Nick Hughes reports.

At a time when the political wind is blowing in the direction of deregulation, allergen policy has been facing into the breeze. When the teenager Natasha Ednan-Laperouse died from an allergic reaction to a Pret a Manger baguette in 2016 it took a little over five years, amid determined campaigning by her family, before ‘Natasha’s Law’ came into force in October 2021 – the law requiring businesses selling prepacked foods for direct sale to provide a full ingredient list including allergens.

Regulators now find themselves under growing pressure to strengthen requirements for how written allergen information is provided for non-prepacked foods, which include those sold loose in restaurants, takeaways and other out-of-home settings.

Earlier this month, the Food Standards Agency (FSA) leadership team proposed in a board paper that new legislative measures should not be pursued for non-prepacked foods in favour of a guidance and training-led approach. But the stance prompted criticism from campaigners and caused disagreement among the FSA’s own board members, some of whom felt the agency was favouring businesses – who would face significant administrative burdens from new legal requirements – over the public. The upshot for foodservice operators is that – for now at least – the potential for new laws on allergen information remains firmly on the table.

So what else is on the allergen agenda that could impact foodservice operators?

PAL priority

The FSA is three years into a programme on food hypersensitivity which began with work to implement Natasha’s Law (a formal evaluation of its implementation is planned for later this year). For the next phase of the programme, the agency has made it a priority to improve allergen management and information to consumers in out-of-home settings, specifically for the type of non-prepacked foods typically sold in restaurants, takeaways and other hospitality venues.

One area in which the agency is keen to take decisive action is on precautionary allergen labelling (PAL) or ‘may contain’ advice, which research shows is a particular frustration for people with food hypersensitivity. The FSA recently ran a consumer perception study on PAL which found that in general people judge it as legal “cover” for the business in the case of accidental consumer harm rather than a beneficial communications tool. Use of PAL was widely judged to be confusing and vague while some people were not even aware that it served to communicate cross-contamination risk.

The FSA has revealed plans to work towards a standardised system for applying a precautionary allergen label to prepacked food products. It also wants to improve cross-contact risk management and communication by businesses selling non-prepacked foods by giving them advice on the conversations they should be having with people with food hypersensitivities; the information they should provide on allergen cross-contact; and the risk management steps they could take to further control or remove the risk.

Non-starters

Looking beyond PAL, a number of options to improve allergen information and communication for non-prepacked foods have recently been stress tested by the FSA and rejected. These include a proposal for a new food allergy safety rating scheme similar to the ‘scores on the doors’ food hygiene rating scheme which the agency concluded was unlikely to be effective. Although a sticker on the door may increase overall confidence of people with food hypersensitivity in a food business, the FSA said its own evidence indicated that people would still need to carry out their own personal checks on a business before deciding whether to eat there.

A central reporting tool for the public to report “near miss” allergic reactions directly to the FSA has also been passed over for the time being. The FSA carried out a proof of concept test of such a tool for four months from November last year which highlighted potential issues with data validity and questions over how consumer awareness and motivation to use the tool could be sustained over the long term. Instead, the FSA is looking into the viability of establishing a regular food hypersensitivity survey to capture the required information.

Consistency is key

One of the driving forces behind the push for better allergen information on non-prepacked foods is evidence showingthat both people and food businesses would like greater consistency in allergen information and management in the out-of-home sector.

The challenge is that devising a universal approach is fraught with difficulty given that the sector encompasses over 100,000 food businesses with diverse operating models ranging from restaurants, takeaways and mobile food vans to delicatessens, caterers and hotels.

The vast majority of businesses take the provision of allergen information extremely seriously – 95% use both written and verbal means of communicating information about allergens to customers (providing one or the other in some form is the legal minimum), according to FSA research. However, there is a lack of consistency in how that information is provided with businesses using a mix of formats including allergen notices on menus or menu boards, separate allergen menus, allergen matrixes, and “ask staff” signs or stickers.

Campaigners for tighter laws for non-prepacked foods want to see a more unified approach. Owen Carey died in 2017 after eating chicken marinated in buttermilk whilst having lunch at a branch of Byron Burger to celebrate his eighteenth birthday. The Carey family has since campaigned to mandate the provision of allergen information on menus through symbols or words and to make it the law that staff must ask the customer about allergens.

The FSA said in its board paper that it strongly supported the campaign objective to improve the provision of information to consumers when eating out and had considered the family’s proposals carefully, including the case for changes in the law. Yet in its recommendation to board members the leadership team rejected the case for legislation in favour of a training and guidance-led approach focused on producing sector specific guidance for food businesses, including good practice on selling food online and via aggregators like Just Eat and Deliveroo, improving the consistency and messaging of the 'ask a member of staff' signage and developing a structured, online training programme for staff.

It said its own research had found that people with food hypersensitivity did not necessarily want to see all 14 regulated allergens listed on menus and wanted food businesses to have flexibility of design to fit in with the business’s style. It also cited the risk that a consumer is less likely to have a conversation with the business about their specific needs and how the food preparation process can be adapted to them when written information is provided. It highlighted too how an absence of an allergen in a dish as listed on a menu does not necessarily translate to the absence of an allergen in the food served, unless cross-contact risks are understood and managed when the food is being prepared. Moreover, written information can quickly become out of date when businesses are operating in a more fluid, dynamic context like the foodservice trade.

The proposal not to mandate written information was greeted with disappointment by the Carey family who in a question submitted to the FSA’s June board meeting cited a survey of members carried out by the Anaphylaxis Campaign last year that showed “overwhelming support” for allergen information to be stated in full.

Some FSA board members were similarly unconvinced by the direction of travel set out by their executive team. One, Margaret Gilmore, expressed her concern that the proposals showed the FSA “almost favouring business to the detriment of the consumer”. Others shared her concerns leading FSA chair professor Susan Jebb to conclude that “major differences of opinion” existed among the board over the provision of written information that would require the FSA’s executive to go away and reflect on its proposals.

The upshot is that less than a year after Natasha’s Law came into force – and a matter of months since mandatory calorie labelling became law – further labelling legislation remains a distinct possibility. For now, both businesses and those people with food hypersensitivity should brace themselves for more allergen uncertainty.

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