03 October 2018

Following the tragic death of a young woman who died after consuming a baguette containing sesame, calls have been made for changes to allergen labelling laws. But are changes really needed and, if so, what could and should be done? 

Existing allergen law

Existing UK labelling laws require food businesses to inform consumers if their food products contain any of 14 specified allergens. Those allergens include ingredients such as sesame seeds, nuts, gluten and dairy. However, the law differentiates between prepacked and non-prepacked foods. Prepacked foods must carry a label on the packaging which clearly indicates where products contain any of those specified allergens.

Non-prepacked food is treated differently, however. Consumers must be offered information about allergens but this information does not have to be provided on a label on the food itself. Instead, the law says that information about allergens can be provided by any means the retailer chooses, including orally, provided that it tells customers that they can speak to a member of staff to find out which products contain allergens.

If a business elects to provide oral information it must tell customers via a label on the food or on a sign, menu or label that is 'readily discernible' that allergen information is available from a member of staff. Consequently, a retailer of non-prepacked food can elect to provide allergen information on labels on shelves or by providing the information orally, as long as signs tell customers that the information is available if they ask for it.

Problems with the existing law

Problems with this system have arisen where food appears to be prepacked, because it is displayed on shelves in packaging, but it has been prepared on the shop premises for direct sale to the consumer. Where food is prepared and packed on site for direct sale to the consumer, the law says that products can be treated as non-prepacked food. In other words, the law does not differentiate between a sandwich shop where sandwiches are made to order in front of the customer and a shop where sandwiches are made on the premises but behind the scenes, packaged up and put out on the shelves for the customer to pick up and take away there and then.

In those circumstances, providing that the retailer puts details of allergens on a label on the shelf or puts up clear signs saying that customers should speak to a member of staff if they have allergen concerns, the retailer is complying with the law. Sadly, however, it is apparent that consumers do not understand this subtlety and, indeed, may not even be aware that the food they are buying was prepared on the premises.

Instances have therefore arisen where customers have bought food which looked like it was prepacked and which contained allergens, believing that the food would have a label on it telling them if allergens were present. The assumption being that if the packaging does not specifically tell the consumer that allergens are present, the product is safe to eat. 

What could and should change?

So, what can be done to improve the situation for consumers and is a wholesale change of the law necessary? The current legislation is derived from EU regulations which gave individual Member States the freedom to decide what measures to adopt to inform consumers about allergens in non-prepacked foods. The UK elected to allow food businesses to choose whether to provide allergen information on labels (or menus) which are not attached to packaging or to provide it orally. Even without Brexit on the horizon, there is nothing to stop the UK government from making changes to the existing labelling regime and it is apparent that there is enough confusion among consumers to make this desirable.

It is within the UK government's power to make changes to require improved communication of allergen information in circumstances where there is an increased risk that confusion could arise. A relatively straightforward solution might be to require food businesses which offer food for sale in any type of packaging (regardless of where the food is prepared) to include allergen information on a label secured to the packaging. Of course, even without legislative change food retailers could elect to include labels on all products which are packaged up for sale. 

Key contact

Helen Scott-Lawler

Helen Scott-Lawler Partner

  • Head of Food and Drink
  • Commercial
  • Intellectual Property and Media

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