With the spotlight recently being thrown on operators’ processes regarding allergens, Duncan Reed explains the possible changes to the law on selling prepackaged food and what anyone preparing fresh food needs to know
The correct labelling of allergens in food is a serious issue for most food businesses, as the consequences of getting it wrong can be severe and, in some cases, fatal. The government is aware of this issue and is consulting on four alternative changes to the way allergens in food must be labelled. Consumers are also increasingly expectant; they want to be able to make informed decisions about what they eat.
The labelling of allergens in food is governed by the Food Information Regulations 2014. The technical guidance to these regulations provided by the Food Standards Agency separates food types into ‘prepacked’ and ‘non-prepacked’ – literally distinguished by whether or not the food is in packaging when sold to the customer.
Producers and suppliers of both prepacked and non-prepacked food are required to make consumers aware of the presence of any potentially allergic substances that may be present. For prepacked foods, this needs to be on the packaging itself – unless the food is served on the premises where it was made and packaged. For non-prepacked foods, producers and suppliers have greater flexibility in how this information is communicated. For example, it could be written on a chalk board or explained by a member of staff.
The government is currently consulting on the way labelling is treated in relation to foods that are served prepacked, but are packed on the same premises in which they are sold. An example would be a salad, sandwich or baked good made and packaged on premises where it is later selected by a customer. This would apply to most fresh food retailers, such as Pret A Manger, as well as establishments like hotels and cafés making, packaging and serving food in this way. There is currently no requirement for allergens to be included on the packaging for such products, but this could change as a result of the consultation.
At its most serious, mistakes around food labelling can have fatal consequences, as recent press coverage has shown. Although the greatest tragedy will always be loss of life, businesses that fall foul of the regulations and find themselves drawn into the spotlight as a result will suffer reputational damage and the unwanted publicity that tends to come with an investigation and/or prosecution by a local authority and an inquest.
Further to this, a breach of the regulations is also a criminal offence, which would open an organisation up to unlimited fines in the magistrates’ court.
There is a high likelihood that this area of law will change in the coming months, subject to the outcome of the consultation. Caterers are able to respond to the consultation and share their views before 29 March, and at the very least they should keep up to date with developments. Businesses should also ensure that they are complying with the law in its current form by:
Reviewing procedures to check that staff training, stocktaking and ordering helps facilitate the regulation;
Giving special consideration to special or one-off products/dishes where staff may not be familiar with the appropriate allergen information;
Maintaining good in-store standards to lower risk of cross-contamination; and
Continually reviewing labelling procedures and updating them as and when necessary.
As mentioned above, the worst-case scenario for a business arising from a breach of the regulation is an unlimited fine in the magistrates’ court. Fines are set based on the amount of harm caused and the culpability of the person or company charged, with higher harm and culpability demanding higher fines.
Duncan Reed is a solicitor advocate at TLT