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The government is very 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 is in the food 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 (FSA) 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 in their food. 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 (see below). 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 of course apply to most fresh food retailers like Pret a Manger, and establishments like hotels and cafes making, packaging and serving food in this way. Currently there is 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 unwanted publicity that tends to come with an investigation and/or prosecution by a local authority and an inquest.
Further to this, breaches of the regulation are a criminal offence, which would open an organisation 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 should keep up to date with developments. Businesses should also ensure that they are complying with the regulation in its current form by:
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.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2019. Specific advice should be sought for specific cases. For more information see our terms & conditions.
27 March 2019
by Duncan Reed
News 17 JUNE 2022