Craig Baylis, a legal practitioner in licensing law, explains how forthcoming legislation on food allergens, which can cause reactions from skin rashes to anaphylactic shock, will affect the whole food industry.
23 September 2014
These days most people are aware that there are certain ingredients in food to which people are allergic and which can in some cases cause severe reactions.
Consumers understand that some people can be severely allergic to peanuts, but there are also common allergies to shellfish, soy beans, milk or even celery.
At the moment the law requires that foods that are pre-packed must identify on their labels certain ingredients that are specified in current legislation.
This list establishes 14 food allergens that have to be indicated on the labelling whenever they - or ingredients made from them - are used at any level in pre-packed foods. The list of 14 currently includes items such as peanuts, soy beans, milk, celery, mustard and sulphur dioxide at certain levels.
Many food producers have been overly cautious about their foodstuffs causing allergic reactions and so it has become increasingly common on food labels to see references that the products "may contain" nuts or is "made in a factory that also handles nuts" or "made on equipment that also processes nuts".
The food industry became too obsessed with the idea that if all of their products were not labelled with the possibility that there might have been some cross-contamination with allergen, then if allergic reactions ensued, they would face the prospect of litigation against them. These warnings, therefore, have become very widespread and can be seen on almost every food item.
These different phrases describe the potential for risk, but are not indicative of the severity of the risk and the Food Standards Agency has become increasingly concerned that the "may contain" labelling is being used too much when it isn't really necessary.
Clearly, this undermines valid warnings on products and so the agency wanted to reduce the unnecessary use of the "may contain" labelling.
Pre-packed and non-packed
So the legal rules for food labelling in relation to allergens will change from 13 December. The new regulations are based on the existing labelling provisions and do not add to the current list of 14 items which are specified as allergens that have to be labelled.
The biggest change for the food industry is that the regulations will now apply to foods that are sold non-packed as well as foods that are pre-packed.
There will be a three-year transition period to allow businesses to make the necessary changes to their processes and labelling designs in order to meet the new provisions.
The other main change in relation to the regulations is in exactly how the allergen information should be given to consumers.
The new leglisation requires substances and products causing allergies to be indicated in the listed ingredients. The likely preferred method is to highlight the offending item in bold.
So, for example, an ingredient listed in the future may look something like this:
"Sunflower oil, water, white wine vinegar, sugar, pasteurised free range egg yolk, extra virgin olive oil, cheese (milk), anchovy paste.
"Anchovy paste contains anchovy (fish), salt, olive oil, spirit vinegar."
Where products are being sold which currently do not need to have an ingredients list - for example, in an office restaurant or canteen where the food is not pre-packed and may consist of salads or hot foods that are served direct to customers, a food business operator will now have to comply with the legislation highlighting allergens in exactly the same way as an ingredients list on pre-packed food.
Informing the customer
This information could be written down on a chalk board, a menu board or a chart or even provided orally by a member of staff.
It does not need to be given in writing, but it must be given. Clearly, writing it down so that anyone can see it will avoid mistakes or omissions.
It is important to remember that these rules only cover information about the 14 major allergens intentionally used as ingredients.
The rules do not cover allergens present following accidental contact or cross-contamination.
The key message everyone involved in food preparation and supply should remember is that after 13 December 2014 the new rules should start to be followed. Identify potential allergens by reference to the specified list of 14 contained in the regulations and make sure that their presence is highlighted in any ingredient listing.
You will find be able to see additional helpful information and guidance on the websites of the Food Standards Agency, the British Hospitality Association and The British Retail Consortium.
For more information see: www.fsa.gov.uk, www.bha.org.uk, www.brc.org.uk
Craig Baylis, partner at Berwin Leighton Paisner LLP