Following concerns raised about the adequacy of allergen information laws in the UK (most recently in the inquest into the death of 15-year-old Natasha Ednan-Laperouse, who suffered an allergic reaction to sesame contained in a Pret a Manger baguette), the UK Government has launched a consultation on potential changes to allergen labelling laws for foods which are "prepacked for direct sale" (PPDS foods). The consultation closes on 29 March 2019.
"PPDS foods" are foods that are packed, before they are offered for sale, on the same premises from which they are sold. PPDS foods include packaged sandwiches in sandwich shops, boxed salads in cafés and wrapped rotisserie chickens in supermarkets, provided in each case that the product was packed on-site before being offered for sale.
Foods that are not prepacked, such as loose fruit and vegetables and meals served in a café or restaurant, are not PPDS foods and are not within the scope of the consultation. PPDS foods also do not include food which is packed only after the consumer has placed their order.
Foods that are prepacked (such as chocolate bars and ready meals) are not covered by the consultation, as these are already required to carry ingredients labelling which emphasises any allergens in the product.
The current law
The EU's Food Information to Consumers (FIC) Regulation requires food businesses to ensure that all mandatory food allergen information is accurate, available and easily accessible to the consumer. However, it allows Member States to introduce national laws as to how allergen information is to be made available for non-prepacked foods, including PPDS foods.
The position in the UK is that allergen information for non-prepacked foods, including PPDS foods, can be made available by any means that the food business chooses, including by providing a notice that the customer should ask a member of staff about allergen information.
Proposals for change
The Government has proposed four options for strengthening the provision of allergen information with PPDS foods. The options represent a sliding-scale, moving from a non-regulatory proposal to increasingly prescriptive regulatory measures. The Government has said that each option should not be considered as exclusive and that the options could be combined, or different options could be made to apply in different circumstances (for example, depending on the size of the food business). The Government has not at this stage expressed its own preferred approach.
Option 1 – Promote best practice (no regulatory change)
The first option put forward by the Government is to promote best practice among both businesses and consumers without changing the law. This could include the issuing of best practice guidance to the catering sector and a public information campaign. This approach would retain maximum flexibility for businesses to make allergen information available for PPDS foods in a manner that suits the way in which they operate.
Option 2 – Mandatory "ask the staff" labels with supporting written information for consumers
This option would see the introduction of a requirement for businesses to put labels/stickers on all PPDS foods to indicate that customers should ask staff about allergen information. When asked about allergens, staff would have to provide the allergen information (relating to a list of 14 allergens prescribed in the FIC Regulation) in writing before the food was purchased.
Option 3 – Mandatory labelling with name of food and allergens
This option would see the introduction of a requirement for PPDS foods to be labelled with the name of the food and information about which allergen(s) (of the 14 listed in the FIC Regulation) the product intentionally contains. If implemented, this proposal would incur additional operational costs for some businesses as generic labelling would have to be amended or supplemented. This might be particularly challenging for small or micro businesses that change their product ranges frequently and could, for example, put them off from selling "one-off specials".
Option 4 – Mandatory labelling with name of food and full ingredients list with allergens emphasised
This option would see the introduction of a requirement for PPDS foods to have a label naming the food and providing a full ingredients list with allergens emphasised. It would make allergen information requirements for PPDS foods consistent in the UK with those for prepacked foods. If implemented, this proposal would incur the greatest operational costs for businesses and would mean, for example, that a business could not make non-allergenic ingredient substitutions in a PPDS product without changing the product's labelling.
The potential for a move away from prepacking for direct sale
If any of the proposed regulatory changes outlined above were implemented, they would not change the requirements for other types of non-prepacked foods. Depending on how onerous any new regulatory requirements were, one consequence could be that some businesses (and particularly smaller business) would move from a practice of prepacking products for direct sale to instead packing products at the consumer's request.