Two deaths from allergic reactions will rightly raise questions – but laws targeting bigger businesses are not the answer. By Dominic Watkins.
It will have been difficult to have missed the tragic story of Natasha Ednan-Laperouse, the teenager who died of an allergic reaction on a flight after eating a baguette from Pret A Manger. This was followed by a second story of an allergy death at Pret; the victim was named this week as Celia Marsh, 42.
To recap, a baguette was bought for Natasha from Pret at Heathrow. The evidence was that the pack was checked for allergens, but there were no allergen declarations on the product – nor was there any ingredient information, but there were signs indicating that customers should speak to staff for allergen information. This is entirely consistent with UK law and this was accepted at the inquest. Despite this, the coroner chose to write a Preventing Future Deaths report (PFD) as he appears to believe that it is inadequate not to label the packaging of sandwiches made on site; and what's more, because Pret sells about 200m items a year that it should have systems in place (like the NHS) to conduct a review after an incident.
A PFD is a report to a person or organisation that the coroner has a duty to make if they believe that action should be taken to prevent future deaths. So in this case the coroner is concerned that the legal framework is such that people are at risk.
That the coroner chose to do this is not a surprise (I predicted this at the start of the case), nor is it, of itself, particularly concerning. This is an area of legislation that is challenging both for businesses and people with allergies, and most would agree that greater clarity is needed for dealing with certain situations. In this case, Pret did what is required of it by law; but there does not appear to have been any oral communication about the product as anticipated, so the system was not able to operate as it should.
The coroner’s focus, however, appears to be elsewhere. His summing up and the PFD show that two main issues concerned him in relation to Pret, as well as two further issues relating to the emergency care and EpiPen usage.
In the coroner’s view, notwithstanding what the law says, allergens were not labelled adequately on foods that had been prepacked for direct sale. His PFD says that the law allows food outlets to “avoid full labelling requirements when they prepare a small number of items in local shops or in the case of Pret 200 million items”. The coroner seems to take considerable issue with this and delivered the damning conclusion: “These items prepared in ‘local kitchens’ are in fact ‘assembled’ in large parts from items made in factory style outlets to Pret specifications. I was left with the impression that the ‘local kitchens’ were in fact a device to evade the spirit of the regulation.”
I am sure that Pret and any other food service outlet would take a different view. In this case the allergen related to the bread, which was part-baked on arrival at the Pret on-site kitchen before being put together with other ingredients to form the sandwich. It is difficult to envisage circumstances where food that might end up being prepacked wouldn’t to some extent have been pre-prepared: from meats to cheeses, butter or mayonnaise. That in my view does not change the fact that they have been put together into a product and prepared on site.
The second area of concern related to that fact that despite selling nearly 200m items, there “was no coherent or co-ordinated system for monitoring customer allergic reactions”. The coroner viewed the systems in place as “highly inadequate” and even the system Pret intended to introduce was considered unsafe.
The coroner is correct that the law applies equally to a small café or a big chain – there is no connection between the size of the business and the rules to be followed. So what is the law and guidance in relation to this case and what could be changed?
Before I continue, let’s be clear: allergen issues should be taken very seriously and this is a matter of life and death for some. My thoughts below do not detract from that and of course, our thoughts are with all those who have ever found themselves in this situation. Allergen challenges can happen whether information is on a product or not, so this issue is really just about how the law requires information to be communicated to consumers.
The law is actually straightforward in what it requires: a food business must provide consumers with allergen information for any food it sells regardless of which channel it is sold through. The government has indicated that this is serious – indeed, it is the only direct offence that you can currently commit under the food labelling regulations.
How the information can be provided differs depending on whether you are selling prepacked food or non-prepacked, as many in the foodservice sector do. This tragic case shines a spotlight on a category of food that falls in the grey area between prepacked and non-prepacked: Pret sandwiches, as they are made/ assembled on site, are considered food that is prepacked for direct sale and is therefore treated the same as non-prepacked food.
For prepacked food – for example the vast majority of food purchased in a grocery store – the law says that the allergen information must appear on the product's label. For non-prepacked foods or food prepacked on site for direct sale, the law requires that the allergen information is provided. The law does not say how; instead it allows businesses to declare allergens “by any means the operator chooses, including … orally”.
(It’s worth noting that the logic here is that, among other things, the fact you happen to put the food in a package on site rather than on a plate on site does not change the risk, and that as you produce it on site – rather than at a remote factory – you know what is in it and can answer questions.)
If the food business chooses to deal with this orally – and there are plenty of very good reasons why, such as the ability to better understand a person’s allergy and give personal advice – the law requires this to be made clear to consumers through what the guidance refers to as “signposting”. The law states: “(3) where a food business operator intends to make available the [allergen information] relating to a relevant food orally … the operator must indicate that details of that substance or product can be obtained by asking a member of staff. (4) The indication mentioned in paragraph (3) must be given – (a) on a label attached to the food, or (b) on a notice, menu, ticket or label that is readily discernible by an intending purchaser at the place where the intending purchaser chooses that food.”
So, provided that the business signposts to a consumer how to find out about allergens on a notice, ticket, label or similar, then it has complied with the law. This point is underlined in the government’s guidance, which suggests the following as appropriate signposting: “Food Allergies and Intolerances: Before you order your food and drinks please speak to our staff if you want to know about our ingredients.”
Let’s again be clear: this is not a relaxation of the law, nor does it require a lower standard. And it is not, as the coroner describes it, “avoiding” full labelling requirements. The same goal is to be achieved – protection of those with allergies. Rather, it recognises that more flexibility on how to do this is appropriate for some types of business. The consequence is that staff must be trained and must know their products. Done well, this will result in better safety through human interaction and the ability to ask questions. This is often why businesses, such as Pret A Manger, choose this option. As with every system, if you look hard enough you will find examples of this not being done as it should be, but that should be viewed for what it is: poor behaviour by the few, not indicative of an industry trying to cut corners.
It appears the coroner thinks that, because Pret sells a lot of sandwiches, different rules should apply and that the flexibility on allergen information should only be for the benefit of small businesses. Pret has resources and could choose to do things differently, as it now has, but this is not what the law requires or even considers. There is no reference to size distinction and none of the guidance mentions this either; there is specific guidance for small and medium businesses, but that is just because this group usually requires more assistance, not that the rules are any different.
That the law leaves it to the business to decide how to comply does not make the law wrong – what works for a restaurant in one location would not work for a staff canteen or a deli, for instance. It is right that allergen information must be provided. It is right that it can be provided orally, and equally right that consumers must be made aware that they need to ask and must in fact do so.
After any tragic incident we should review how best to ensure safety for the future, but changing the rules depending on the scale of the business is unlikely to make things better. Following the implementation of this law, research by the Food Standards Agency showed that customers really valued the oral interaction over written-only communication.
Pret has announced new measures that include: prominent allergen warning stickers on all freshly made products; additional allergen warning signs in shops; and full ingredient information, including allergens, for all products available online and in shops. However, this goes well above and beyond what the law requires.
Whether the product is labelled or not, the system also requires that the information provided is accurate – which, tragically, appears to be what went wrong in the second case involving Pret. Here it appears that a sandwich that was supposed to be dairy free was not. This was not because Pret had failed to label something, but because its supplier had been selling an ingredient to Pret as dairy free which was not. The supplier, CoYo, disputes this. Assuming that Pret’s version of events is accurate, there is nothing else it could have done here as it had no reason not to trust that the ingredient was what it claimed to be.
I have been involved in several allergen cases like this in the past and have advised a range of businesses on the law in this area; without fail, they all want to comply. The last thing that anyone wants is for someone to get hurt. It is easy to blame businesses, but if the law has been complied with, is it right to criticise the food seller and then call for more law? I don’t think so. Care has to be taken to ensure that we do not regulate for the sake of it and any change actually improves the situation for all and does not create an unworkable situation: as the CEO of Greggs is quoted as saying, you can't put a label on a sausage roll. But this doesn’t mean that guidance couldn’t be improved, for example.
Foodservice businesses and those selling sandwiches, cakes and so on that are prepacked on site for direct sale need to watch the developments of this case with care. The next step is for the government and the parties to respond to the coroner’s PFD. Those responses, due by December 3rd 2018, will probably end up on the chief coroner’s website and will no doubt garner more press interest.
It will be interesting to see how the government responds to the coroner. We have already had Neil Parish, the chairman of the environment, food and rural affairs select committee, calling for change, while the prime minister, Theresa May, has suggested she could initiate a review of labelling laws following this case. I wouldn’t be surprised if an amendment to the regulations is proposed, particularly in relation to the treatment of prepacked for direct sale items. However, I would urge caution. As the Pret CEO, Clive Schlee, said, everyone wants to see “meaningful change come from this tragedy” but change for change’s sake is in nobody’s interest.
While we wait, businesses should carefully review their allergen management systems to ensure that they offer the maximum protection. With rising fines for food safety issues and media interest in these stories at an unprecedented level, there really has never been a better time to invest a little more in compliance.
Dominic Watkins is a partner in the global regulatory compliance and investigations team at law firm DWF.