Allergens labelling changes are afoot

• Teenage boy dies after suffering fatal reaction to eating chicken coated in buttermilk.

• Teenage girl dies after eating baguette containing sesame seeds.

These were just two headlines which appeared in the media during the last two years. Both reported tragic stories of teenagers who died having eaten food to which they were allergic.

Current Regulations

The EU Food Information for Consumers Regulation No 1169/2011 (“the Regulations”) identifies 14 allergens (and products thereof) which must be shown in an ingredients list as being present in foods in the following cases:

• pre-packed foods – pre-packed foods are foods which have been put into packaging before sale where there is no opportunity for direct communication between producer and consumer and the contents cannot be altered without opening or changing the packaging; and
• foods offered for sale to the final consumer or to mass caterers (e.g. a restaurant, canteen, club, public house, school or hospital) without packaging, or where foods are packed on the sales premises at the consumer’s request.

Allergen information must also be provided for non-prepacked foods in written or oral formats with clear signposting to where consumers can obtain this information when it is not provided upfront.

For alcoholic drinks where there is no ingredients list, allergens can be indicated by the word “contains” followed by the name of the allergan.

However, there is currently no obligation to include allergy information on prepacked foods that have been packed on the same premises as they are being sold, so-called prepacked food for direct sale. In these situations, there is an assumption that any customer purchasing a product would ask staff directly for any allergen information.

In addition, with the Government announcing that further legislation with respect of food labelling will come into force by summer 2021 restaurants and food vendors should be taking steps to address the issue now.

What next?

Proposed changes to the legislation regarding food labelling are expected to incorporate new directives for prepacked food for direct sale. Under the new legislation the obligation will be on the food business operator to provide allergan information rather than the customer to request such information. It will therefore be necessary to provide the allergan information on the labels on all packaged food.

With both criminal and civil legal regimes being applicable to the sale of foods containing allergans it is essential that careful consideration is given to the Regulations as they currently exist and arrangements are put in place to ensure that all staff are aware of the amended legislation once it comes into effect.

In anticipation of the new legislation many food business operators are already making changes to their operations to ensure compliance. Suggested steps which could be taken now are set out below.

Steps to be taken

Steps which could be taken now include:

• A de-construction of restaurant menus to ensure that if any of the 14 allergens referred to in the Regulations are in any dish these are specifically highlighted on the menu.
• Ensure all staff are fully conversant with the 14 allergans referred to in the Regulations so that if any guest enquires as to whether they are present in any dish, an informed and correct answer can be given.
• A change in front of house staffing so that they pro-actively enquire as to whether any guests have allergies.
• Ensuring a list of ingredients appears on all foods sold (whether pre-packed or direct sale – i.e. foods prepared and sold on the same premises) with any of the 14 allergans highlighted if present.

Conclusion

If the anticipated new legislation comes into effect all businesses will need to understand the precise make up of every item of good sold or described on a menu and further will need to understand whether there are allergans present. Whilst clear labelling remains critical, it is also important that staff are aware of the duty of care that all food businesses owe to their customers as well as a full knowledge of all allergans. Good staff training will therefore be essential.