Legal: Will tighter laws consign overbaking to history?

John Mitchell, partner at law firm Blake Morgan, looks at the impact new regulations on acrylamide management could have on Britain’s bakers

There was a time when a slightly burnt biscuit or pasty would have been all part of the authenticity of a homegrown British bakery, but businesses of all sizes are now subject to increasingly stringent regulations.

The source of all this standardisation is acrylamide – a chemical substance formed by a reaction between amino acids and sugars when starchy foods such as bread and biscuits are cooked at temperatures over 120°C.

With regulators now recognising it as a possible carcinogen, and thus a public health risk, all food business operators (FBOs) will be required to put in place simple, practical steps to handle acrylamide within their food safety management systems – to ensure acrylamide levels are as low as reasonably achievable in their products.

Commission Regulation (EU) 2017/2158 will take effect from April this year and will establish best practice, mitigation measures and benchmark levels for the reduction of acrylamide in food.

The regulation gives more teeth to the earlier Commission Recommendation that first set indicative levels, and the European Food Safety Authority’s Toolbox for manufacturers, neither of which were legally binding and therefore could not be enforced.

The regulation applies to bread and fine bakery wares, defined as: cookies, biscuits, rusks, cereal bars, scones, cornets, wafers, crumpets, gingerbread, crackers, crispbreads and bread substitutes.

The starting point for all bakeries is to be familiar with the various recommended mitigation measures including:

Consider reducing or replacing fully or partially ammonium bicarbonate with alternative raising agents, such as sodium bicarbonate and acidulants;

Replace fructose or fructose- containing ingredients such as syrups and honey with glucose or sucrose;

Review whether it is possible to partially replace wheat flour with alternative grain flour, such as rice, taking into consideration that any change will have an impact on the baking process;

Ensure that suppliers of heat-treated ingredients that are susceptible to acrylamide formation carry out an acrylamide risk assessment and, if necessary, implement the appropriate mitigation measures;

Fine-tune the time and temperature combination to reduce acrylamide formation while achieving the targeted product characteristics;

Products should be baked to a lighter colour, taking into account product quality, shelf life and food safety standards.

For businesses already applying the Toolbox measures, little if any change in manufacturing process is necessary, but if sampling and analysis are not undertaken, they will have to be introduced.

The level of action required depends on the nature of the business: there are derogations given to businesses that both manufacture and retail their products locally, such as local bakers. In particular, they are exempt from the sampling and analysis requirements (note: there is no definition of ‘local’).

The regulation contains benchmark levels and exceeding these levels is not an offence or a breach of the rules. However, the key point in the regulation’s wording is this: ‘When the benchmark levels are exceeded, food business operators shall review the mitigation measures applied and adjust processes and controls with the aim to achieve levels of acrylamide as low as reasonably achievable below the benchmark levels set out in Annex IV. Food business operators shall hereby take into account the safety of foodstuffs, specific production and geographic conditions or product characteristics.’

Exceeding the benchmark level is, therefore, a trigger for the business to take action to reduce to what is reasonably achievable. The use of the word “reasonable” implies an objective standard and if the business fails to achieve this, it is breaching the regulation.

The consequences of breaching the regulation are unknown until the UK government enables enforcement of the EU regulation in UK law. It’s entirely possible, given earlier precedent, that the means of enforcement will be an enforcement notice rather than a criminal prosecution, with a prosecution being resorted to only if the enforcement notice is not complied with.

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