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12 September 2019
Food allergies are an increasing problem for consumers and food businesses alike. It is estimated that over 2 million adults in the UK suffer from food allergies, whilst hospital admissions for children suffering the effects of food related allergies have increased by 500 per cent in the last 20 years. High profile deaths such as the sad case of Natasha Ednan-Laperouse, who had a known allergy to sesame and died after eating a sandwich purchased from a Pret a Manger store, have recently brought the issue of food allergens into the forefront of public consciousness.
Natasha's story highlighted a significant gap between consumer understanding and the law. The current law in England, Wales and Northern Ireland distinguishes between 'prepacked' and 'non-prepacked' foods when it comes to the provision of information to consumers about ingredients and allergens. Prepacked foods must have a label which lists all ingredients and must clearly identify whether the product contains any of the 14 declarable allergens. Information relating to non-prepacked foods, on the other hand, can be provided in any way a food retailer sees fit, including orally. If a business decides to give the information orally, it must have clear signs indicating that consumers should speak to staff members for more information.
The system for non-prepacked foods generally works well in circumstances where consumers have more time to read signs and have a conversation with staff about allergens, for example in a restaurant setting. However, a key issue with this system is that some foods look like they are prepacked but are actually treated under the existing legislation in the same way as non-prepacked foods. These are foods which are classified as 'prepacked for direct sale' and which are made up and prepacked in preparation areas on the premises from which they are sold to consumers. Many products sold in Pret and similar 'food-to-go' outlets fall into this category. The problem is that consumers are often either unaware that the food is packaged up for direct sale on site, or are unaware that there is a legal distinction between food that is packaged for sale off-premises and food that is packaged for direct sale from the premises where they are prepared. In many cases, consumers assume that if they purchase a ready-wrapped product its packaging will clearly state if it contains any of the 14 declarable allergens and they will not appreciate that the situation differs depending on where the preparation and packing of the product took place. And in a fast-paced fast-food retail outlet where the consumer is in a hurry, signs telling them to ask about allergens will not always be readily seen or read.
All this is about to change, however. Following campaigning from Natasha's family, a groundswell of opinion that change was needed and a period of consultation earlier this year, the government has announced that it will be implementing a change to the law which will come into effect in England, Wales and Northern Ireland by summer 2021.
The precise detail is yet to be provided but we do know that food businesses will be required to provide full ingredients labelling for foods which are prepacked for direct sale. This means that these products will have to provide comprehensive ingredients labelling, as well as making it clear whether those ingredients include any of the 14 declarable allergens. This will benefit all consumers with allergies as they should be able to clearly see from the label whether a prepacked product contains any of the declarable allergens, regardless of the premises they are prepared in. In addition, those consumers who are allergic to ingredients which are not one of the 14 declarable allergens (coconut, for example) should also be able to see from the ingredients label whether the product is safe for them to eat.
The proposed change will have other wider benefits for consumers. An increasing desire for consumers to understand the nature and ingredients of the products they consume, along with a rise in life-style driven demands for free-from, plant based and healthy foods means that many consumers will welcome greater transparency about the content of all types of prepacked foods.
Whilst the change to the law will be welcome news for many consumers, however, it does raise certain challenges. Affected food businesses will need to change their existing practices over the next two years to ensure that they are compliant. This is likely to increase costs for those businesses and it will hit smaller businesses proportionately harder than larger ones, although the logistics are likely to be a challenge for all affected food businesses. It may lead to retailers adopting a more limited range of prepacked goods to make the labelling logistics easier to manage and any changes to products, ingredients or suppliers are likely to require careful management to ensure labels remain accurate. Technological solutions are likely to help play a part in many businesses keeping on top of the challenge.
The rise in the prominence of allergens and their impact on consumers, along with an increase in life-style driven choices about food consumption also raises issues which the planned changes to the labelling regime do nothing to tackle. Gluten is currently the only allergen that has specific legislation which regulates the amount of the allergen which can be in a product if a retailer wishes to market it as 'free-from' gluten. Products can only make a 'gluten-free' declaration if they contain gluten levels of 20mg per kilo or less. No other allergens have legally specified levels and, similarly, there are no specific rules dealing with other free-from claims (eg. dairy-free or nut-free) or claims such as 'plant-based' or 'vegan', for example, other than more generic rules around not mislabelling or misleading consumers. Although testing methods have become increasingly sophisticated and previous levels of contamination may no longer be accepted, there are no agreed criteria to which manufacturers are required to operate. Consequently, different manufacturers are testing for and relying upon varying levels of 'free-from' or contamination. As consumers become ever more food-aware, it seems likely that there will be increasing pressure on manufacturers and government to provide definitive guidance, or even regulation, in this area.
For further information on this topic please contact Sian Edmunds at Burges Salmon LLP by telephone (+44 117 939 2000) or email (email@example.com). The Burges Salmon LLP website can be accessed at www.burges-salmon.com.
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