Food Allergy and the Law

The provision of accurate information on allergenic ingredients in food is important. There have been a number of publicised deaths and prosecutions due to preventable errors in communication or a blatant disregard of the law. Failure to comply with the law could result in a long custodial sentence and substantial fine.

A kebab shop was prosecuted in 2018 following the death of a teenager with a severe milk allergy who ate a kebab containing yoghurt. The investigation had established there was no signage in the shop and no information on menus to alert customers to the presence of allergenic ingredients in food. Ignorance of law was no defence as the owner was told in a previous inspection that he was required to display signage advising customers about allergenic ingredients in foods.

A restaurant owner was sentenced to six years in jail for gross negligence manslaughter in 2016 after a customer with a severe peanut allergy died from eating a curry containing peanuts. The owner had changed the recipe from ground almonds to a cheaper groundnut mix containing peanuts. He continued to disregard the law, despite a previous incident where a teenager had been hospitalised a few weeks earlier and a warning from trading standards officers to inform customer curry dishes contained peanuts.  

The EU Food Information for Consumers Regulations (No. 1179/2011) and Food Information Regulations 2014 (primary enforcement mechanism) outline requirements for food pre-packed, non-prepacked and food packed for immediately consumption. The law is very clear in the responsibilities for food businesses to provide accurate information on 14 intentional allergenic ingredients in food and drink and ‘they must not supply food which they know or presume to non-compliant with the law’. A food business cannot simply say they do not know if these any of these allergenic ingredients are present. If they do not know, then the product must be destroyed.

Allergen information must be made available for the entire as served, and must include any garnish, toppings, glazes and accompaniments. Do not forget to include cooking oils, such as sesame and peanut. This information must be visible, clearly legible and accessible when requested. But problems can still arise in declaring accurate information. A common mistake in declaring cereals containing gluten and tree nuts is that a specific cereal or nut is not listed. This information must be declared by law because some people may only have allergy to a certain cereal or tree nut. Food businesses have also been known to include unintentional allergenic ingredients as an intentional ingredient. This may happen when precautionary allergen information on a prepacked product is mistakenly included as intentional ingredient within allergen matrix by placing a tick in the relevant allergen column. It is better to put MC (may contain) as this provides accurate information to the consumer.

The Food Information Regulations 2014, Article 5, creates a provision where a food business can choose to communicate information on 14 allergenic ingredients verbally for foods that are non-prepacked, packed at the customer’s request or prepacked for direct sale. Signposting must be in place to inform the consumer this information can be obtained by asking a member of staff. This indication can be written on a label attached to the product or displayed on a notice, menu, ticket or label. Signposting not attached to the product must be readily discernible (apparent) by the consumer and at a place where he or she will choose that food. Allergen information provided verbally should be recorded in a written format (e.g. allergen matrix) to ensure it is consistent, accurate and verifiable.

Compliance with the law does not necessarily mean risk to consumers is completely avoided. A teenager with a severe sesame allergy died in 2017 when she mistakenly consumed a baguette containing sesame seeds purchased in a well-known high street sandwich shop. The allergenic ingredients were not listed on a label attached to the product. Instead signs on shelves and at till points informed customers with food allergies to speak to the manager. Information about allergenic ingredients was also available in store and online.  But the coroner’s verdict reported that allergen information provided by the food business was “inadequate in terms of visibility” and “difficult to see” and the teenager was “reassured” by the lack of a specific warning of the packaging. This verdict was supported by the fact that a complaint log for the company showed nine case of sesame related incidents with four customers hospitalised. Following the damning verdict, the food business made a commitment to attach a label with information on allergenic ingredients to its products.

Maintaining a strong chain of communication when dealing with a food allergy request is important and failure can result in a tragic consequence. A 18 year old women with severe allergy to milk died in 2018 when she ate chicken burger marinated in buttermilk. She had informed the restaurant about her allergies, but systematic failures lead to her death. The jury at the inquest into her death recorded a verdict of misadventure due to a lack of communication between the server and the chef. Her allergies were noted on the order, but were missed numerous times during the construction, preparation and delivery of the burger. The jury and an expert witness also concluded procedural failures when an allergy book listing the allergenic ingredients was not offered and information within it was incomplete.

There is additional food safety legislation in place to prosecute a food business for not declaring allergen information and placing food onto the market that is injurious to health. Contravention of the Food Safety Act 1990 may occur if food is injurious to health (section 7), not of the substance demanded by the purchaser (section 14), or when a food business operator falsely describes or labels food which misleads the purchaser to the actual substance within the product. A takeaway was successfully prosecuted and fined £12,000 for selling a potentially harmful meal. Environmental Health Officers made a test purchase for peanut free curry, but analysis revealed the meal contained peanuts. EC Regulation 178/2002 also creates an offence for a food business to place unsafe food on the market. A hazard can arise when a customer with a food allergy or other hypersensitivity is mislead by the food business for not declaring 14 allergenic ingredients required by law. 

Learn more about food hypersensitivities and the law by completing an accredited training course. We currently offer the Highfield Level 2 Award in Food Allergen Awareness and Control in Catering and the Highfield Level 3 Award in Allergen Management for Caterers. Food hypersensitivities are also covered on all our food safety and hygiene courses. Contact us now for a competitive quote for training your team.

 

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