The Food Standards Agency (FSA) revealed on Wednesday, 16 January, its new voluntary guidelines to warn consumers about possible allergens in food from food retail outlets, such as bakeries, cafés and restaurants, as well as food that is not prepacked. Two weeks later, on Wednesday, 30 January, the EU Commission went even further and announced an intention to introduce new legislation to make this mandatory.
The FSA’s guidelines, backed by an advice booklet which warns that "eating even a small bit of food" can cause illness or death, suggest that products made with ingredients that may cause an allergic reaction should be listed on a card, label or menu.
However, the guidance also points out that this is not compulsory and that an alternative is to ensure all staff are equipped to answer accurately questions from consumers about whether the food contains allergenic ingredients. The guidance stresses the importance of ensuring employees do not guess the answer to such questions.
Allergy information on prepacked food is compulsory, but EU law allows member states an option to require, or not to require, written information about allergens in connection with food not packed at the time of sale - even if it is packed after the customer asks for it. The same exception applies to food from, and eaten in, bake-ries. The UK took up the option not to require written labelling in those cases.
The new guidance was produced after extensive consultation with industry and expressly says it shouldn’t be used as a guide to enforcement by the authorities. This means that non-observance of the guidance is not to be regarded as an indication that an offence has been committed - which is right, because it is a best-practice guide.
The guidance assumes that it is up to the allergic consumer to ask for information about ingredients and that there is no legal obligation on the business selling the food to volunteer that such ingredients have been used.
However, the guidance stresses that if the consumer is given information about allergenic ingredients, it must be accurate, and points out that if information is given which is inaccurate, it is likely that the business is committing a criminal offence and may be liable to damages. Overall, the FSA has published some great practical guidance about how food businesses should control their exposure to this risk.
However, the guidance may be fairly short-lived, since the European Commission has just announced it intends to use the proposed updating of EU food law to extend compulsory allergen information from prepacked foods to these other categories. The text of the Commission’s proposal is not yet available, and there is a hint that alternatives to labelling or display signage may be introduced. This is obviously an important topic for bakers and those selling food that is not prepacked - such as many sandwich bars. Such food businesses should keep a close eye on the proposals and lobby to ensure the eventual regulations are practical.
* Owen Warnock is partner and food expert at international law firm Evershed