Tag: food standards

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.

Brexit and Regulation

Over recent months, this blog has focused on marketing strategy.  However, there is more to Philmus Consulting than strategic marketing planning.  This consultancy also offers guidance on regulatory due diligence in relation to food standards and consumer protection law.

So this week I want to address the thorny issue of Brexit and its effect on the regulatory environment within which UK businesses operate.

Of course, this subject isn’t wholly divorced from marketing planning.  Analysis of the political and legislative environment is a prominent part of the market analysis process.  Government and regulators are often key stakeholders in the policies and procedures of businesses.

You may be aware that I wrote to Michael Gove shortly after his appointment as Secretary of State for the Environment, Food and Rural Affairs. My letter tried to get some information as to DEFRA’s preparedness for Brexit.  I chose to highlight two areas of food regulation, Organic Certification and Products of Designated Origin.

I chose these two topics as they brought the issue of regulatory diversion into sharp relief.  Also in my mind was Gove’s comments at the referendum that we’d “had enough of experts”.  I did wonder if Theresa May was getting some revenge in early ass DEFRA is a department filled with experts and where attention to regulatory detail is often required.

I did get a reply from Mr Gove’s office but it was less than satisfactory.  I got a holding letter which stated that no detail could be given until the conclusion of the exit negotiations and that only after the Article 50 process was concluded, could such planning take place.

Last week, the UK government released its first tranche of contingency plans in the event of ‘no deal’.  One of these documents concerned the certification of organic food.  That contingency paper confirmed my worst fears of the UK government’s lack of preparedness for Brexit and the regulatory chaos that will be thrust upon UK businesses as a result of Brexit.

The UK government is slowly drip feeding industry with these contingency documents and have taken 18 months to do so.  The EU produced their equivalent documents six months ago.

The organic products contingency paper was written for a no deal scenario.  However, my reading of the law is that the effect of the UK becoming a ‘third country’ will be the same on the organic sector whatever the result of the article 50 process.  The impact of EU exit and the UK government’s utter failure to plan, could destroy the UK organic food sector completely.

Currently, the UK, as an EU member, implements the EU Organic Products Directive.  What this means in practice is that the UK complies with the EU-wide definition of organic food.  A food producer wanting to describe their food as organic, must meet strict criteria as to the use of organic production processes.  There are strict limits on the use of inorganic fertilisers and pesticides.  If a producer wants to be classed as an organic producer, they must be certified as meeting organic standards and they must keep detailed records in relation to their organic status.

Getting organic status is expensive and can be extremely time-consuming.  Achieving organic certification can cost thousands.  I know one farm which spent nearly a decade working to ensure their land met organic standards.

There are nine organic certification bodies in the UK.  three of these bodies are based in the Republic of Ireland.  Each has been licensed by the EU to issue organic certificates to UK food producers.

Once a UK producer has achieved organic status, they can mark their food labels with the EU green leaf passport.  This symbol allows the food to travel throughout the single market with no further certification checks.

I wrote to Mr Gove as it was clear to me that leaving the EU would mean the collapse of this certification process.

The government’s contingency document confirms my fears but it also contains one crucial detail which may mean that organic production in the UK becomes financially unviable.

The document states that, “in the event of no deal”, all UK organic certificates will lapse.  UK organic certification bodies will no longer be authorised to issue organic status certificates to UK food producers.  The UK will have to set up a new system of organic certification.

Certification bodies will have to be licensed by the UK government.  This could be a lengthy process as the UK government will have to set up the certification system and carry out effective audits of the certification bodies to ensure that they comply with new UK-only organic standards.  Only after these bodies have been licensed by the UK government can new organic certificates be issued to food producers.  Existing organic food producers will have to reapply for organic status and pay certification fees.

The effect is immediate disruption to the supply of UK organic produce.

But it gets worse.  The contingency document states that the UK will continue to accept organic food produced under the EU system with no further checks.

So whilst UK production of organic food is disrupted, EU producers have full, unfettered access to the UK market.

So what if you want to export organic food to the rest of Europe.  Well, the contingency document is clear on that.  It must be noted that organic food is a value-added export product.

It is clear that once the UK becomes a third country UK organic food will not be able to use the green leaf passport. UK food described as organic will be subject to additional inspections at EU state borders and, if it uses the green leaf logo unofficially, will likely not be allowed access to the single market.

UK organic producers will have to be certified by an EU-based certification body which is licensed to operate within the UK.  Currently, no such body exists.

As the UK will be a ‘third country’, even if the producer is certified by an EU-licensed certification body, the food will need to be clearly marked as being of ‘non-EU origin’.

So UK exporters of organic foods will face expensive dual certification and this could be increasingly expensive if EU and UK organic standards diverge.  UK organic exports will likely face additional controls and barriers at EU borders.

Whilst UK producers flounder in the regulatory molasses of Brexit; with increased bureaucracy and additional costs; EU organic producers will have free unfettered access to the UK market; a distinct competitive advantage.

Such a competitive imbalance, and the likely reduction in margins due to the cost of additional UK bureaucracy, could easily make organic production in the UK unviable.

In this article, I have concentrated on one issue in one market sector; but this is just one example amongst thousands.  Similar issues occur across the UK economy, from toys, to pesticides, to motor vehicles, to financial services, cosmetics, metrology; to name but a few.

There is now six months until Brexit day.  Even if the UK government comes up with new systems of certification and regulation, it is highly unlikely that such systems will be in place for March next year.

Much of the media attention regarding Brexit has been focussed on custom’s tariffs.  But regulatory issues are a far more problematic concern.  Deal or no deal, the UK government’s failure to recognise the problems of regulatory divergence, and their appalling lack of preparation are going to be a costly and disruptive issue for UK business.

A prominent component in the arguments from Brexit was freeing the UK from EU bureaucracy.  Of what I have read of the UK government’s contingency plans, the solution to the loss of EU red tape is…..even more UK red tape.