The UK Government has announced a new law requiring businesses to label foods that are pre-packaged for direct sale with a full list of ingredients and allergens emphasised.
The legislation, known as 'Natasha's law' following the fatal allergic reaction to a Pret a Manger baguette suffered by Natasha Ednan-Laperouse, will significantly tighten the laws around food labelling, with the Government opting for the most prescriptive regulatory option out of four proposals it originally suggested.
The legislation will be introduced by the end of this summer, and come into force by summer 2021, allowing businesses two years to prepare for the changes.
The current law on providing food allergen information
The rules around the provision of food allergen information are largely governed by the Food Information to Consumers (FIC) Regulation (EU 1169/2011). Under FIC, food which is prepacked, for example a ready meal sold in a supermarket, must be labelled with full ingredients and with any of the EU’s 14 specified food allergens emphasised. With non-prepacked food, however, which includes food that is prepacked for direct sale ("PPDS foods"), the Food Information Regulations 2014 (FIR) (England) and parallel regulations in Ireland allow food businesses to make allergen information available by any means that they choose; including orally by a member of staff.
The new legislation will change the rules specifically for PPDS foods, i.e. those that are packed on the same premises from which they are being sold, before they are offered for sale. These can include baguettes or salads that are made onsite and then placed on a shelf for customers to buy. For a product to be considered PPDS, it is also usually expected that the customer is able to speak with the person who made or packed the product to ask about ingredients.
Certain 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 new law. PPDS foods also do not include foods packed only after the consumer has placed their order.
Foods that are prepacked (such as chocolate bars and ready meals) were not covered by the consultation, as these already fall under the scope of the FIC Regulation.
The new legislation
In January this year we posted about four proposals the Government was considering to strengthen the provision of allergen information available for PPDS foods. These were:
- Option 1 – Promote best practice (no regulatory change).
- Option 2 – 'Mandatory "ask the staff" labels with supporting written information for consumers.
- Option 3 – Mandatory labelling with name of food and allergens.
- Option 4 – Mandatory labelling with name of food and full ingredients list with allergens emphasised.
The Government has now committed to implementing Option 4.
Consequences for the sale of PPDS foods
Option 4 is arguably the safest option for consumers, providing them with the best information possible in the most accessible way. However, more stringent and detailed requirements arguably carry the risk of mislabelling, and allergy-sufferers may wrongly presume, because of broadly similar labels, that PPDS foods are subject to the same level of quality assurance and controls as prepacked food.
From the perspective of businesses, Option 4 is likely to be the most costly to implement. In their responses to the consultation, businesses highlighted the potential complexity of frequently updating and communicating accurate ingredient information down the supply chain to a label.
There are also particular challenges for smaller businesses, given the risks of accidentally experiencing cross-contact of ingredients in small kitchens, and these businesses being more prone to disruption that requires rapid ingredient substitution. Smaller businesses may also be less able to use long-term contracts to maintain a consistent product to prevent ingredient substitution. Whilst larger businesses will still face the extra costs associated with the new requirements, they are likely to have access to greater resources for quality assurance than smaller providers of PPDS foods.
Finally, it is unclear whether the new legislation will require businesses to improve training for staff members on allergen information, or if the Government views Option 4 by itself as sufficient for now.
The new law will be introduced in England and Northern Ireland by summer 2021. The Government has committed to working with the devolved administrations to ensure a UK-wide approach to consumer protection, and the Scottish Government has already indicated that it also intends to take forward Option 4.
FSA guidance will be published alongside the legislation this summer to support businesses and local authorities, with more detailed guidance to follow by the end of the year.
If you require advice on the issues discussed in this blog post, or support in implementing changes to your business, please contact us.
Co-authored by John Cassels and Jonathan Peters (Trainee Solicitor)