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.

A Disaster Made in Whitehall

This week, this blog is slightly different.  Following the horrific fire at Grenfell tower in London, I wrote an article for the New European Newspaper.  You can obtain a copy of the newspaper at most newsagents but I thought it would be worthwhile publishing it on this site as well.

It would not be an understatement to sat that I am angry about the Grenfell tower disaster.  As each day passes and more information about the cause of the fire is released, I become increasingly apoplectic.

The causes of my anger are two-fold; that safety regulations appear to have been breached on an industrial scale; and that the system of local government regulatory enforcement seems to have broken down completely.

I have worked in the field of public protection for twenty-five years.  In that time I have only seen cuts to staffing and budgets.  The austerity measures introduced by David Cameron only accelerated the process of resource decline.

In my view, the disaster at Grenfell tower was a disaster waiting to happen and austerity cuts imposed on the local authority played a significant role in its inception.

Much attention in news reports has been given to the exterior cladding fitted to tower blocks and it is increasingly apparent that incorrect construction products were used.  The cladding fitted to Grenfell tower was Reynobond PE which is manufactured in France by an American firm, Arconic.

Arconic’s brochure for their range of exterior cladding is informative.  There are three types of cladding in the Reynobond range; PE, FR and A2.

The brochure states: “As soon as the building is higher than the firefighter’s ladders, it must be conceived of an incombustible material”.

A diagram shows that Reynobond PE should not be used on buildings at a height greater than 10 metres.  Where the building is greater than 30 metres in height, Reynobond A2, which has an incombustible mineral core, should be used. (Grenfell tower is 62 metres high)

Reports regarding the evacuated Camden tower blocks are also worrying.  There are reports that up to 1000 fire doors were missing; that gas pipes had been incorrectly installed; that walls had been removed compromising fire containment; and that highly flammable insulation materials were used.

These reports point not only to shoddy building practices but failures in the enforcement regime intended to protect the residents and the wider public.

John McDonnell, the Shadow Chancellor, is wrong in law to state that the deaths at Grenfell tower are, “murder by political decisions”; murder requires malice aforethought. But his sentiments ring true.

The decisions of successive governments to reduce the resources available to local government enforcers has had a direct impact on their ability to enforce complex legislation.  This reduction in resources has no doubt played a direct role in the unlawful killing of more than 79 individuals.

There are three council services which are closely involved with the construction industry; planning, building control and trading standards.  Planning approves the development.  Building control enforces the building regulations and ensures construction standards are met.  Trading standards enforces the Construction Products Regulations 2013.  My personal experience lies with the third of these functions.

I began my career in the product safety team of a large local authority.  I had significant resources at my disposal.  I had full access to legal texts, case precedent and product safety standards.  I had a small laboratory to carry out screening tests.  I also worked closely with the local public analyst who was part of the same council department.  The biggest resource was the scale of the trading standards team.  It was large enough to allow officers to develop specialist knowledge of particular enforcement functions.

Shortly after I joined the team, the first set of EU-wide construction product regulations came into law.  One of my colleagues was immediately tasked with their enforcement.  His sole role was to develop links to the building components industry and to ensure that products complied.

In today’s local authority environment, such specialist roles are extremely rare.  Officers are expected to be Jack of all trades.  Increasingly they are masters of none.  Take the example of my last local authority role.

I was the senior officer in a team of six.  Officers had to enforce the full gamut of trading standards law.  To show the scale of that task, trading standards professionals enforce over seventy acts of parliament and approximately 2000 statutory instruments.  Often officers were seconded to other enforcement functions such as fly tipping and taxi licensing.

My team had an annual product safety budget of £5000.  That would cover the cost of four heavy metal content tests of toys.  There was no capacity to test complex products such as those controlled by the Construction Products Regulations.

I was made redundant from my supervisory role in 2010.  Since that time the reduction in trading standards provision has accelerated. Of the six officers in my team, only one is still in employment.

London Boroughs have had to bear an even heavier burden of cuts.  The cost of living in the capital has made it all but impossible for them to recruit experienced and fully qualified enforcement staff.  I know of one council close to London where staff are commuting 160 miles per day as they cannot afford to live within the council’s boundaries.  Increasingly London is reliant on freelance inspectors on short-term contracts.  The rate of pay for these officers has fallen by approximately two-thirds in the last five years.

There is also an extremely worrying attitude in government towards regulatory enforcement.  On five occasions I have written to government ministers imploring them to use their considerable oversight powers to ensure that local authorities are allocating sufficient resources to enforcement services.  Every time the response from government has been to rebuff my pleas and to absolve themselves from responsibility.  They respond that resource allocation is solely a matter for individual local authorities.

Then there are the comments to the Brexit select committee of Jacob Rees Mogg.  He said that following Brexit, health and safety legislation could, “be rolled back a long way”.  He went further and proposed that the UK should consider safety standards similar to those of India.  He was following the mantra of many in tory ranks that public safety is a price worth paying for economic gain.  I wonder if Mr Rees Mogg is willing to repeat his opinion following the Grenfell tower disaster.

Safety laws and standards are not created out of thin air.  Each and every one of them is a response to actual events: deaths, scandals and disasters.  The first duty of the government is the safety of the public.  The decimation of local government provision is a clear breach of that duty.