The Department for Environment, Food & Rural Affairs (“DEFRA”) has announced a consultation regarding proposed changes to allergen labelling laws for food prepacked for direct sale in the UK.

This follows the death of Natasha Ednan-Laperouse in July 2016, which was the result of an allergic reaction after consuming a baguette from Pret a Manger that contained sesame seeds. The coroner’s inquest in September 2018 found that Pret’s allergen labelling system was “inadequate”, as the allergen stickers on food display units (which instructed consumers to ask staff for details of allergens) were not sufficiently visible. In response, Environment Secretary Michael Gove promised an overhaul of allergen labelling law to avoid such incidents in the future. The current consultation follows Gove’s meeting with retailers, specialists and allergy groups in December 2018.

Current Position

Currently, allergen labelling in the UK is covered by the Food Information Regulation 1169/2011 (“Food Information Regulation”). The Food Information Regulation states that prepacked food must include allergen information either on the packaging or an attached label. Food business operators (“FBOs”) also have to provide allergen information for non-prepackaged food (i.e., food offered for sale without prepackaging, or packed on sales premises at the consumer’s request or prepacked for direct sale).

However, FBOs can provide allergen information for non-prepackaged food by any means they choose. The Regulation leaves it open to Member States to impose stricter allergen labelling measures. Some Member States have taken a more restrictive approach. In France, for example, allergen information for non-prepacked food must be in writing, on the food itself or close to it, in a way that excludes any uncertainty. In Ireland, all allergen information must be provided to consumers in writing, at the point of presentation, sale or supply. In contrast, the UK gave FBOs more freedom, allowing them to make allergen information for non-prepacked food available by any means they choose, including orally.

Proposed Changes

DEFRA has proposed four ways in which the problem of apparently inadequate food allergen labelling could be addressed. The proposed changes focus on foods prepacked for direct sale (a type of non-prepackaged foods), which would particularly affect food retailers such as Pret a Manger.

  1. Promote best practice around communicating allergen information to consumers (this would mean no change in the law).
  2. Add “ask the staff” stickers to packaging; staff would have to provide information orally and in writing if asked by the consumer.
  3. Label food with the name of the food, and list any allergens.
  4. Label food with the name of the food, a full ingredients list and with allergens emphasized.

The options therefore cover a wide range, from no change in the law to regulatory measures.

Many FBOs that produce food prepacked for direct sale are already implementing the second option, alerting consumers that there may be allergens and they should ask staff for more details. It could be that the consultation will result in nothing further being required of FBOs. However, the last two options, which both involve full labelling of allergens, could prove onerous for FBOs as they would bear the costs of labelling changes.

Moreover, issues of unintended cross-contamination in food preparation might mean that even if a food had a full ingredients list with the correct allergens emphasised, it could still contain allergens that might harm unaware consumers. For this reason, to achieve maximum effectiveness any regulatory changes would need to be combined with training for FBOs on how to avoid cross-contamination of allergens in the food preparation process. FBOs would also need to consider auditing their suppliers to ensure that any apparently allergen-free food ingredients really were allergen-free.

Impact of Brexit

All existing provisions of EU law are due to be carried across into UK domestic law through the European Union (Withdrawal) Act 2018. This means that initially, at least, UK allergen labelling law will remain consistent with EU rules. In the longer term, however, it is unclear whether UK allergen labelling law will keep pace with any EU changes. Much will depend on what sort of political, legal and economic relationship the UK has with the EU after 29 March 2019.

The government consultation, as well as DEFRA’s Impact Assessment, is available on the DEFRA website until the 29 March. All interested parties may respond, including business and consumer groups, enforcement authorities, and members of the general public.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Brian Kelly Brian Kelly

Brian Kelly is a partner in the European Life Sciences group and also co-chair of Covington’s Global Food Industry Group. Brian’s practice focuses on EU food and drug regulatory law, public and administrative proceedings, EU procurement advice and challenges, internal investigations, European Union…

Brian Kelly is a partner in the European Life Sciences group and also co-chair of Covington’s Global Food Industry Group. Brian’s practice focuses on EU food and drug regulatory law, public and administrative proceedings, EU procurement advice and challenges, internal investigations, European Union law, and product liability and safety. The Chambers Europe Guide to the legal profession lists Brian as part of our “world-class [regulatory and public affairs] team and describes him as a notable practitioner who is “very ambitious, thorough with a sharp intellect”. The Chambers UK Guide quotes clients saying: “his communication and work ethic stand out, he is very hard-working and dedicated when it comes to his cases.”

Brian’s advice on general regulatory matters across all sectors includes borderline determinations, food classifications, tissue and stem cell regulation, adverse event and other reporting obligations, manufacturing controls, labeling and promotion, pricing and reimbursement/procurement, procurement/tenders (including emergency use tenders, EU-wide tenders, Covid-19-related tenders), product life cycle management (foods and medicines), nanotechnology, and anti-bribery and corruption advice. Brian has also been advising on UK and European “Brexit” related issues including tariffs.

Brian has also advised and co-ordinated international projects on advertising/promotion, clinical research, data protection, the regulatory status of borderline products, food/cosmetic ingredient reviews and advises on regulatory aspects of corporate/commercial deals, particularly regulatory due diligence.

Brian is also experienced in representing clients in administrative and enforcement proceedings before regulatory authorities and in the UK and EU courts.

Brian is an honorary lecturer at University College London.