Changes to food allergen labelling requirements: are you ready?

With the easing of a nationwide lockdown, cafes, bars and restaurants are serving a growing number of consumers again. However, for many food and drink outlets, the pandemic has meant pivoting the business in order to survive; restaurants have become delivery services, bars and cafes have become takeaways. The blurring of lines across such businesses has meant that a larger-than-expected number of food and drink outlets may need to comply with new legislation.

This bulletin outlines some of the upcoming regulations being introduced and considers some of the challenges facing the food, drink and hospitality industries in the UK.

Natasha’s Law

On 1 October 2021, The Food Information (Amendment) (England) Regulations 2019 comes into force in England. Equivalent legislation is being introduced in Wales and Northern Ireland also on 1 October 2021, with Scotland expected to follow suit.

Colloquially named “Natasha’s Law” after teenager Natasha Ednan-Laperouse, who suffered a fatal allergic reaction after unknowingly eating sesame contained in a baguette, the Regulation places additional labelling requirements on pre-packed foods for direct sale (or “PPDS”). PPDS is considered to be any food packaged at the same premises where it is sold to consumers, which is displayed in its packaging before the customer orders or selects the food. For example, this would include prepacked sandwiches, takeaway pizzas, food produced in schools and care homes, or free samples packed at a food stall and given away to the general public.

Natasha’s Law will affect Food Business Operators (“FBOs”), and suppliers of FBOs, who provide PPDS to customers. In this sense, “customers” may be anyone from the end consumer to mass caterers. It will be mandatory for the food’s packaging to contain a clearly visible label – either on or attached to the packaging - that provides (1) the name of the food and (2) a full list of ingredients with any of the 14 specified allergens.

The Regulation carries strict liability, meaning failure to comply with the labelling requirements is a criminal offence in which no finding of fault is needed to prove liability. FBOs, and management staff, could be at risk of fines, imprisonment and/or personal injury claims for failing to correctly label PPDS. Apart from the legal sanctions, negative publicity could do lasting damage to a business and brand’s reputation. FBOs should ensure that their business is well prepared for these upcoming changes.

You can read our full analysis on Natasha’s Law here.

Owen’s Law

In a similar vein to Natasha’s Law, the family of Owen Carey have been campaigning since 2017 for mandatory food labelling requirements on restaurant menus – “Owen’s Law”. Owen Carey suffered an anaphylactic reaction after being reassured by staff in a restaurant that his chicken burger would meet his allergy requirements. However, the burger had been marinated in buttermilk, to which Owen was highly allergic.

If implemented, Owen’s Law would look to go further than Natasha’s Law by requiring restaurants to include allergen information and a full ingredients list for each dish on the menu. This could be provided in the form of standardised allergen charts, or detailed matrices, to ensure customers have visibility of the ingredients in their food order. This element would likely have similar impact to Natasha’s Law, but would widen the pool of FBOs affected, to include all restaurants and bars offering food.

Further, Owen Carey’s family want to introduce changes to current regulation so that employees in food outlets initiate positive discussion with customers around potential allergies. This could go as far as servers advising on allergens at the point of order, duty managers overseeing this process and it being an offence if they fail to do so. If introduced, this would mean that, for an industry with high-staff turnover, FBOs would need to invest heavily in employee training programmes to ensure compliance and knowledge of all employees of the relevant regulations.

Considerations for businesses

FBOs to whom PPDS is supplied by external suppliers should start taking steps now to:

• Communicate with suppliers. If suppliers are not already providing compliant labels for or on the PPDS they sell to customers, FBOs should request these in good time prior to the commencement of the new regulations. FBOs should also ensure they have the full ingredients list if they are producing their own labels.
• Review current systems and training procedures. While FBOs may have quality control systems already in place, it would be advisable to check these are sufficient at the point PPDS is delivered to them. To ensure compliance, employees will need to be adequately trained in these procedures and know what to look out for.
• Review suppliers’ complaints procedures. FBOs can mitigate the risk to their business from non-compliance by ensuring there is a structured procedure in place and complaints can be dealt with in a timely manner.

Suppliers of PPDS to FBOs should:

• Communicate with customers. To ensure the FBO has all the necessary information, even if this information is not requested, it is recommended to provide this to FBOs ahead of time to avoid what could become costly delays.
• Provide clear instructions or warnings to customers, where necessary. If there is a significant risk of cross-contamination from allergens in PPDS, FSA Guidance remains in place for this to be included on the label.
• Check and communicate with their own suppliers. While not a legal requirement under Natasha’s Law, checking recipes or ingredients with suppliers further down the supply chain will assist to avoid ‘near misses’ with the supplier’s own customers.

Finally, wherever you are in the supply chain - from manufacturer to end user – it is imperative to stay alert to recipe changes which may result from the many uncertainties arising from the updates to legislation, or the “new normal”.

For more information on this or any other upcoming developments that may impact your food business, please reach out to our team for advice.

Article co-authored by Rosie Lapper, Trainee Solicitor