With new year, new challenges arise – DWF’s Dominic Watkins, Global Head of Consumer Sector, looks at the seriousness and key legal aspects of allergen legal framework.
2024 has started with allergen management back in the news, rekindling discussions about many facets of this important, but operationally difficult, topic. One restaurant manager remarked to me when conducting a compliance review that allergen non-compliance is their nightmare – as every day they are trying to ensure that they get their customer interactions 100% correct. However, they serve each day knowing one mistake or mishearing of an order could result in someone’s death. The stakes are high and that is one reason that so much effort goes into securing compliance.
The consequences are far more severe for the consumer of products, and of course, those with hypersensitivity to allergens should be able to safely visit restaurants. Even with control measures in place and the necessary information available, it may not always be enough, as sometimes consumers don’t ask. A situation that the widely reported inquest into the death of James Atkinson this month highlighted.
The reports of the inquest suggest that Mr Atkinson, who had a peanut allergy, had ordered a chicken tikka masala pizza, but was not understood to have mentioned his nut allergy when ordering from an Asian takeaway on Deliveroo. It also appears did Mr Atkinson did not follow the instructions on the Deliveroo app to contact the restaurant to clarify if there were nuts in the product. Tragically, peanut powder was used in one of the ingredients and it was enough to result in fatal consequences.
Challenging legal framework
The law in this area has developed separately for prepacked vs non-prepacked foods. Allergen information has always been required on pack for prepacked foods, with a further nuance for distance sales. The position has been more challenging for non-prepacked foods, which (when FIC was introduced) left to member states to decide what labelling information is necessary.
Non-prepacked foods cover a wide range of situations, from displayed foods that are selected by a consumer, to prepared to order and a range of other products in between. For these foods, the FBO is permitted to make allergen information available in any way that it sees fit, including orally. The Food Information Regulations 2014 then explain that, where information is provided orally, there must be signage. Whilst where in writing, the label must indicate that details of allergens can be obtained by asking a member of staff.
Following the tragic death of Natasha Ednan-Laperouse, the law was changed effective 1 October 2021 for pre-packed for direct sale foods to allow them to effectively be treated as prepacked foods. As they were already in packaging, at the time that the consumer orders or selects them, the law now requires an ingredients label and allergen information amongst other information. Yet, it did not change the position for other non-prepacked foods.
Over the years, the deaths of Celia Marsh and Owen Carey have led to questions about the adequacy of allergen management and information. Subsequently, coroners in these cases have made recommendations to industry and government alike. The cases were different but raised different challenges about intentional and unintentional allergen information and disclosure. In the Celia Marsh case, a Super Veg Rainbow Wrap was sold as dairy-free, but despite the intention of Pret that it was dairy-free, the coconut yoghurt used contained milk protein as one of its ingredients which had been substituted early in the supply chain. By contrast, the Owen Carey case relates to a chicken that was marinated in buttermilk, but this marinade was not declared nor was the presence of milk. In the Marsh case, the product should not have contained milk; in the Byron case it was intentional, though not disclosed. In both cases, the person consuming the products lost their life –It is literally a life or death situation.
More changes coming?
The Carey family have continued to campaign for better allergen information, and that has seen the topic reaching the FSA Board on more than one occasion. Most recently, it resulted in allergen information for the ‘non-prepacked sector’ being on the agenda for the December 2023 FSA Board Meeting. The FSA Board considered a detailed paper, which recommended the creation of a ‘presumption that there should be both written information and a conversation. This provides two lines of defence that can be mutually reinforcing.’The paper contained several options for the written element, considering three elements defining the level of prescription of allergen information: how the information is provided (where and what format); enabling compliance (ensuring it happens); and consistency of presentation (how it looks and abbreviations used). It ultimately recommended guidance, rather than a change in the law.
Interestingly, despite the wider FSA’s recommendation for guidance, the FSA Board decided they would like to see the requirement for written allergen information to occur in legislation in the non-prepacked sector and will be writing to the minister to discuss the FSA’s view. While this does not necessarily mean that the law will change, it is more likely than before for those not already doing so that “written information is provided in a consistent manner, primarily on menus, but allowing the flexibility for alternative formats to be used where justified.”
While it remains to be seen if the Government will adopt these changes, it is clear that the FSA Board is advocating this on a four-country basis, the question of course is when. With UK general election likely this year, and the government effectively stopping for 2-3 months before that, there is a limited amount of time available to make this a reality.
Does Brexit offer the chance to update the allergen list?
One other question is whether the new freedoms under Brexit would allow the UK to refresh the allergen lists? Most operators will be familiar with being asked about a wide range of products that go far beyond the EU14 list. Without the need to stay aligned to the EU, the UK could include products like tomatoes or others on the list that appear to have more common impacts.
Vegan virtues? Risk if wrong.
One repeated challenge arises from the use of vegan claims on products. This was an issue in the Celia Marsh case, where Pret was (unsuccessfully) prosecuted for misleadingly describing the product as Vegan when it in fact contained dairy protein.
It is, however, right that some people do use vegan as a read across to the product being dairy and egg free. One of the challenges associated with the term vegan is that there is no legal definition, and while a BRC audit standard has been developed in this case, it is unclear what definition a court would accept. It becomes even more important when using terms like plant-based or similar, which a consumer might assume means exclusively from plants. Therefore, free from dairy or egg allergens when it just was intended as indicating the primary ingredient is plant.
As consumer understanding varies, so does the risk. It is necessary to ensure that where vegan and non-vegan products are produced or displayed together, and there might be cross contamination, then a precautionary statement would be required. Similarly, it becomes even more important to validate that the same applies to the supply chain and its ingredients, as the tragic deaths demonstrate – it just takes one mislabelled ingredient that you purchase in good faith for the worst to occur.
What can you do?
Allergen issues can arise in a range of ways, from substitution of ingredients or products early in the supply chain, cross contamination at every stage, to simply giving the wrong food to a consumer because the server and the consumer misunderstood each other. It is vital to ensure that your systems are considered holistically and from end to end. Focussing only on the point of order or selection, while clearly critical, also poses a range of other earlier risks and potential issues. How do you ensure that the ingredients are what they say they are, without different allergens in them like in the Celia Marsh case? How do you ensure that staff can tell the difference between similar products? If you have a coffee machine with a milk reservoir, do you ensure it is not dripping and cross contaminating? While much of this might be basic, it requires good discipline and record keeping. In law, there is a defence of taking all reasonable precautions and exercising all due diligence, which includes it being reasonable to rely on information provided by others. However, winning a prosecution is likely to be a limited reward if your reputation is in tatters following a death in store.
For further insights, please also visit DWF’s Consumer Sustainability in Focus hub here, and if you have any questions about points raised above or how this may affect your business, please get in touch with DWF’s Dominic Watkins.