Allergen Labelling and Controls

Over the last week, the UK press has taken an interest in the inquest into the death of fifteen year old Natasha Ednan-Laperousz.  Ms Laperousz had died after eating a sandwich from an airport branch of Pret-a-Mange, the upmarket sandwich retailer. She was allergic to sesame and the sandwich she ate contained sesame seeds.  The seeds had been baked into the bread so they were not visible to the consumer.  In his summing up at the end of the inquest, the coroner stated his belief that the allergen labelling of food was inadequate and a change in the law was required.

Today, Pret-a-Mange announced that a second death due to anaphylactic shock had occurred at one of their premises in 2017.  In that instance, the deceased had been allergic to milk.  They had eaten a vegan wrap which was meant to contain milk free yoghurt.  There had been an error at the supplier of the yoghurt and the ingredient included in the wrap had contained dairy.

As a trading standards professional and food standards inspector, I have enforced the food labelling laws relating to allergenic ingredients for almost twenty years.  As far back as 2002, I was attending industry and governmental conferences regarding anaphylaxis and the labelling of allergenic ingredients.

At last week’s Conservative Party conference, Michael Gove, the secretary of state for the Department of the Environment, Food and Rural Affairs, stated that he would look into the coroner’s advice and would get his department to bring forward legislation to improve the allergen labelling of food.  This is clearly a case of the government shutting the stable door long after the horse has bolted.  Both the Chartered Trading Standards Institute and Anaphylaxis Charities have been calling for mandatory allergen labelling on food for almost as long as I can remember.  It has taken the death of a fifteen year old girl to get a solid proposal for legislative change.

So what is the law in relation to allergen labelling on food.

For many years, food labelling legislation was silent on the labelling of allergen guidance on food.  However, that changed just after the millennium.  Increasingly, food manufacturers had been adding statements to packaging regarding allergens.  Most prominent were warnings that food either contained nuts or was manufactured in an environment where nuts may be present.

Such warnings were causing real problems for allergy sufferers.  Industry was using such warnings as a catch-all defence to potential civil law disputes.  For people with allergies, a visit to a supermarket was like Russian roulette.  nearly every product contained a confusing statement as to the potential for a food to contain allergenic ingredients or for potential cross contamination issues.

The UK government acted and amended food law.  Manufacturers of prepacked food were to take action to ensure that there was separation between allergenic and non-allergenic ingredients.  Ideally, this meant separate production lines and quarantine barriers to prevent cross contamination.  Where this was no possible, ‘may contain’ statements could be used.  The Food Standards Agency also provided guidance to manufacturers of pre-packed food on cleaning machinery used to produced food and appropriate risk assessment protocols.

However, food sold unpacked or prepacked for direct sale was not included in the regulation of allergens.  So premises such as caterers and take away retailers were not covered by the legislation and they were not required to warn consumers of the presence of allergenic ingredients in their food.

Prepacked for direct sale is where food which would otherwise be sold loose is placed in a pack for hygiene reasons.  For example, a butcher making up his meat orders for collection by consumers, a cheesemonger who pre-cuts blocks of cheese and wraps them in plastic film or a sandwich retailer who prepares a quantity of sandwiches to cope with the lunchtime rush and places them in paper bags

Subsequently, there were deaths of consumers due to anaphylactic shock in restaurants and after eating take away food.  One distressing case I was told of was of a student who visited an Indian restaurant during Fresher’s week.  She had accompanied her new flatmates to the restaurant.  When the waiter arrived at their table, she clearly stated to him that she had a nut allergy and no nuts were to be in her food.  This was noted on the order.  The waiter then asked if the students wanted poppadums.  They said yes, they would.  The student again warned the waiter of her allergy and asked that her poppadum be fried in vegetable oil.

In the kitchen, the chef followed the instructions of the waiter.  He prepared the student’s meal and included no nuts.  He fried her poppadum in vegetable oil.  He then laid the poppadum to one side to drain off the excess oil.  Unfortunately, the tray on which the chef laid the student’s poppadum was soaked in nut oil.

The poppadum was sent to the table.  The student took a bite and almost immediately suffered a massive anaphylactic shock.  Within minutes, she was dead.

Such cases caused the government to issue strict guidelines for caterers as to the separation of allergens and non-allergenic ingredients on food premises such as restaurants and takeaway retailers.  However, there was still no law requiring caterers or retailers manufacturing food on the premises to warn consumers that their food may contain allergenic ingredients.

In 2014, the UK government introduced the Food Information Regulations.  These implemented the EU Food Information Directive and consolidated several sets of food regulation into a single piece of legislation.

The EU directive took a direct lead from the old UK law.  It is yet another example of UK legislation being adopted across the EU.

The directive copied the UK requirement for the labelling of ingredients for pre-packed foods.  Allergens had to be clearly identified in the ingredients list using a separate font and preferably in bold type.  Clear warnings were to be given of the presence of allergens, e.g. Contains Nuts or Contains Milk.

Occasionally I see bottles of milk labelled ‘Contains Milk’.  Such labelling is not required.  Both the old UK law and the EU directive clearly state that where the name of the food gives a clear indication of allergen content, such warnings are not required.  It would therefore not be necessary to mark cheese as containing milk.

Article 44 of the EU directive clearly states that the only mandatory information necessary for unpacked food or food packed for direct sale is the name of the food.  The EU directive does not legislate for allergen labelling on food sold loose from bulk, at a catering establishment or prepacked for direct sale.  However, it does state that domestic governments within the EU can legislate for such a measure.  Governments can do so as long as the introduction of such a measure does not impede cross border trade within the EU.

During the consultation on the new Food Information Regulations Anaphylaxis charities and the food law enforcement community lobbied DEFRA for improved allergen labelling in restaurants and takeaways.  This could be achieved through the use of menu information, shelf edge labels or on premises notices.

The government decided that the introduction of mandatory allergen information was a ‘burden on business’.  However, it did take another baby step towards better allergen information.  Caterers and retailers would, as a minimum requirement, have to display a statement that consumers should ask members of staff as to the allergen content of the food on offer.  The Food Standards Agency issued guidance to caterers as to staff training and the production of allergen information documentation.  Staff should know what the food they serve contains and have training in relation to allergies.

That guidance didn’t stop allergy deaths.

In 2016, a consumer in Yorkshire died following the consumption of an Indian takeaway which contained ground nut powder.  The business men who operated the take away (one of three he owned) had previously been warned by food inspectors about the potential allergen risk his food contained.  He had decided to swap almond powder for ground nut powder for reasons of economy.  He was warned that he must inform consumers of the ground nut content of his curries.  He failed to do so.  In fact the meal the deceased consumer had eaten was marked ‘NO NUTS’ despite the use of ground nut powder.

That businessman was convicted of manslaughter due to his wilful disregard for allergen controls.  He is currently serving an eight year prison sentence.

So finally, the government is to introduce better allergen information for all food sold in the UK, not just pre-packed foods.  It is now clear that government’s decision to only legislate for advisory notices was insufficient.  If only they had taken the advice of experts; you know, those people Michael Gove has had enough of!

The second allergen-related death announced by Pret-a-Mange today points to their problem with allergen ingredients goes beyond labelling.  They have clearly had a breakdown in their due diligence controls and they have not properly risk assessed the potential damage of such a breakdown.  It is the duty of food business operators to ensure that the food they supply is safe.  That duty includes the audit of suppliers to ensure cross contamination and the improper inclusion of allergenic ingredients does not occur.  In the Laperousz case, it would be interesting to know what training staff had into the ingredients of the food they served and what documentary information they had at their disposal.

The provision of advisory notices on potential allergen components of food is, in law, a minimum requirement.  In the case of Natasha Ednan-Laperousz, it is clear such a minimum requirement was insufficient and a proper risk assessment of the supply situation may indicate a level of due diligence beyond the legal minimum.  The sandwich was bought at an airport; a location where consumers may be in a rush or may have poor command of English.  Reliance on a single notice advising consumers to ask staff as to the allergen content of food may not meet the risk criteria evident.

If you run a food business, I urge you to take expert guidance on the use of allergen ingredients, their storage and the potential for cross contamination.  I urge you to train your staff as to the impact allergenic ingredient may have and in appropriate first aid.

Many people confuse allergies and food intolerance.  A food intolerance, such as gluten or lactose intolerance will make a person ill.  However, it takes time for an intolerance to take effect and the results are not normally fatal.

It takes molecules of an allergen ingredient to cause a rapid and often intense reaction. Swelling caused by the bodies immune system can quickly prevent the sufferer from breathing or block blood flow to vital organs.  An allergic reaction and the subsequent anaphylactic shock can kill sufferers in minutes.

Below is a list of the recognised allergens controlled in food law.  There are geographic differences as to the likely cause of allergies.  For example, in France the most common allergic reaction is to mustard.  In the UK it is to peanuts.

Allergen list:

  1. Celery
  2. Cereals containing gluten
  3. Crustaceans – including prawns, lobster and crab
  4. Eggs
  5. Fish
  6. Lupin (in catering from the use of lupin beans)
  7. Milk
  8. Molluscs – squid, mussels, cockles, whelks, snails, etc.
  9. Mustard
  10. Nuts
  11. Peanuts – these have been separated out from the nut category as peanuts are legumes, similar to peas and lentils, and not true nuts
  12. Sesame seeds
  13. Soya Beans
  14. Sulphur Dioxide and Sulphites greater than 10mg per Kilogram/Litre.  Sulphites and Sulphur dioxide is often present naturally in wines and strawberry products (e.g. jams). Sulphites are also a common additive and used as a preservative.

Of course, the above list refers to components and by-products made from the above foods e.g. nut oil, sesame oil or soya bean curd.