Everyone has the right to know that the food they have bought matches the description given on the label. If mislabelling is done deliberately it is criminal fraud, whether it poses a food safety threat or not; falsely describing, advertising or presenting food is an offence and there are many laws that help protect consumers against dishonest labelling and misleading descriptions.
Food businesses are required to follow the allergen information rules as laid out in the EU Food Information to Consumers Regulation (EU) No 1169/2011, which came into force in December 2014. This requires that allergen information is provided to the consumer for both pre-packed and non-pre-packed food, that food allergens are handled and managed adequately and that staff are informed about allergens. This includes knowing the procedures when asked by consumers to provide allergen information, being aware of the risks of cross-contamination when handling and preparing foods and receiving training on handling allergy information.
The regulations distinguish between pre-packed and non-pre-packed foods. Pre-packed refers to any food that is put into packaging before being placed on sale. These foods require an ingredients list which emphasises allergenic ingredients each time that they appear in the list. Where goods are pre-packed for direct sale and made on the premises the rules apply as if the product was a non-pre-packed food. Those foods require allergen information to be supplied in relation to every time that one of the 14 allergens is an ingredient. Importantly, this does not have to be a label directly affixed to the goods; this is where the current law is potentially failing the general public.
Pret were not required to print allergen advice on the baguette wrapper itself as it was made on the premises and, therefore, is considered to be non-pre-packed food product; the law remains the same today, yet change is in motion. Following the inquest, Pret agreed to a full ingredient labelling policy on all products that are made in its shop kitchens. It’s not only Pret that have come in for criticism. Food delivery service Deliveroo are in the process of overhauling their menus to display more allergen information – historically customers have had to obtain this information direct from the restaurants.
Michael Gove MP, Secretary of State for Environment, Food and Rural Affairs, has urged businesses to take voluntary action to improve their food allergen labelling and has stated his commitment to ensuring that the law is altered during the course of 2019. Gove has sought urgent advice on how to strengthen the current allergen labelling framework. A review is underway and Defra and the Food Standards Agency are working together with the Department for Health and Social Care. Parliament have stated that it would not be sufficient to place default warnings on packing which ultimately serve to protect businesses from liability rather than protecting the health of the public.
As of yet there has been no clear indication as to what the new legislation would entail, but it is likely that the distinction between pre-packed and non-pre-packed foods will be extinguished. As the law currently stands, general allergen warnings can be given orally for items that are made in-store, if written warnings are displayed somewhere within the store, rather than affixed to the goods themselves. However given the potential tragic consequences, full allergen labelling would be a safer solution. A universal labelling system is called for, meaning that there is consistency across the industry, developing a clearer, safer approach.
It falls to local authorities to enforce the allergen information regulations. Failure to comply can result in improvement notices being issued where there are reasonable grounds for believing that your business is failing to comply with the food labelling laws. Breach of an improvement notice is a criminal offence. Your business can suffer severe economic and reputational damage.
- Even if food is non-pre-packed, it is advisable to consider labelling foods with full ingredient labels, highlighting the 14 allergens where applicable.
- Do address your company policies on food allergen labelling.
- Ensure that staff are adequately trained on allergens.
- Do review the free allergy training resource that is provided by the Food Standards Agency.
This article is from the autumn 2019 issue of Food for Thought, our newsletter for those working within the food and drink industries. The content of this article is for general information only. For further information please contact Julie Gowland or a member of Birketts' Regulatory and Corporate Defence team. To download the latest issue, please visit the newsletter section of our website. Law covered as at autumn 2019.