Are you doing enough to warn customers about Allergens?

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Recent headlines featuring Pret a Manger have led to heightened public and social media interest in allergen labelling. The recent inquest into the death of Natasha Ednan-Laperouse who suffered cardiac arrest after eating a baguette containing sesame has been widely reported upon. In addition, this has led to a second instance of a Pret customer passing away last December following an allergic reaction to dairy to surface with Pret and dairy-free yoghurt supplier COYO exchanging press releases to deflect the blame.

Interestingly, during the inquest for Natasha, the coroner concluded that he will be making a report to the Environment Secretary Michael Gove urging a review of current allergen labelling requirements. It is therefore more important than ever for businesses to review their current labelling processes.

Review of the Existing Regulations

Under the current legislation, as outlined in our July article Are you Declaring Food Allergens?, if food has been prepared on the premises or is sold loose (non-prepacked) there is presently no obligation to present allergen information on the product itself. Instead, general allergen warnings can be posted on the premises signposting customers to request information orally from staff for specific advice. The information provided must then be accurate. This is in contrast to pre-packed foods which must have any of the 14 listed allergens present in the product included in their ingredients list on the packaging.

This distinction is designed to assist small independent premises such as butchers and bakeries that prepare food on site, perhaps only packing bespoke products at the point of purchase. However, there is no legal distinction made between large and small companies and so the reduced labelling requirements for food produced on site apply equally across the industry.

Dr Sean Cummings, the acting senior coroner for West London said during Natasha's inquest “it seems on the face of it a bit strange that a local sandwich shop can benefit from that regulation ... but that an organisation that sold ... 218 million items [a year] could also benefit from that regulation ... A cynic might think it was almost a device to get round regulation relating to information on food allergens.” At best it would certainly be uncomfortable for any sizeable company to explain why additional allergen labelling was not implemented in such circumstances, even if they were technically legally compliant.

In response to the inquest Michael Gove has said that the government is “urgently” reviewing the existing legislation and prime minister Theresa May confirmed to the BBC that the government would consider company responsibilities in relation to food labelling.

What does this mean going forwards?

Whilst the current legislation is under review, The Food Information Regulations 2014 remain in force. However, companies may now choose to implement higher standards than those required by law in a 'belt and braces' approach to allergen information. Whilst being a positive step for customer safety, this could also prove to be a sensible decision for brand and reputation management in a notoriously competitive market.

Following the inquest Pret a Manger have agreed to implement full ingredient labelling across all of its products, including those freshly made in store. Clive Schlee, the CEO at Pret, said “I said we would learn from this tragedy and ensure meaningful changes happen… I hope these measures set us on course to drive change in the industry so people with allergies are as protected and informed as possible”.

Consequences of Non-Compliance

In serious instances of non-compliance with the minimum requirements of the regulations a prosecution can ensue. Under the food safety sentencing guidelines this can mean an unlimited fine or up to two years in prison for senior managers and directors.

It is also possible for the police to bring manslaughter charges. New sentencing guidelines for gross negligence manslaughter due to be effective from the 01 November 2018 mean that an individual can now be sentenced to up to 18 years in prison for the offence. Significantly, even in cases of lower culpability where 'negligent conduct was a lapse in the offender's otherwise satisfactory standard of care' or they were of a 'lesser or subordinate role', the starting point will soon be 2 years custodial.

As featured in our July article above, Mohammed Zaman, owner of the Indian Garden restaurant and takeaway in North Yorkshire was convicted in 2016 of gross negligence manslaughter and jailed for six years after supplying a curry containing peanuts to a customer with a peanut allergy. It is therefore possible that if a similar case was considered under the new guidelines once in force, such a sentence could be even more severe.

The fines imposed under the current food safety guidelines are based on turnover. As a result, a smaller but no less significant example from July 2018 saw Stephen Nock, a former owner of Seasons Restaurant in Eastbourne fined £1,200 and ordered to pay prosecution costs of £959. This was following a four-year old boy spending 8 hours in hospital after he was served an ice cream alongside a chocolate hazelnut wafer despite his mother alerting staff to his nut allergy. East Sussex Trading Standards discovered that the menu and allergen folder failed to specify the presence of the allergen and staff training records were inadequate. East Sussex County Council lead member for safety Councillor Bill Bentley said “all food businesses have a legal duty to provide customers with clear and accurate, allergy information about the food they serve and must ensure staff are properly trained and have rigorous diligence procedures in place. This was an extremely traumatic experience for the boy and his mother, and we can only be thankful the outcome wasn’t even more serious.”

With the potential regulatory and reputational consequences for a breach being so high it is now more important than ever for companies to review their existing practices and ensure compliance. It should be noted that  a serious incident isn't required for offences to be committed - a risk of harm is sufficient, even if no-one is actually hurt. It would be worth all businesses taking the time to consider what training and procedures they have in place and whether they are satisfied that these adequately comply with their legal obligations, both now and in the future.

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