On 28 September 2018 a West London Coroner concluded that Natasha Ednan- Laperouse died of Anaphylaxis after eating a baguette containing sesame to which she was allergic. In his conclusion Dr Sean Cummings said he would write to the Government to raise concerns about what he referred to as ‘inadequate’ food labelling regulations having heard about the teenager’s death. The Government is asked to consider whether change is needed.
The current legislation means that for the majority of food products sold in the UK, allergens are displayed in a certain way on the packaging, with a prescriptive method of marking, size and font of each allergen present. Whereas there are different rules under Regulation 5(1) of the Food Information Regulations 2014 (Regulation 5) for food that is sold to consumers where the product is ‘freshly made’. This is food sold in restaurants and bars and food sold in a retail scenario that is packaged at the consumer’s request, or is pre-packed on the premises where it is sold. In other words the exception to the labelling requirement does not on the face of it apply where packaging takes place offsite and then the product is transported to the retail premises.
Regulation 5 states that information about allergens for fresh foods can be conveyed ‘by any means the operator chooses’. It is stipulated also that if the information is to be orally communicated customers must be clearly notified by way of a label, a sign or a menu that allergen information is available and will be supplied on request. There is also provision in the law which ensures that the catch all phrase ‘may contain [an allergen]’ should not be used without certainty about the risk of allergens having cross contaminated food - as consumers need to be able to rely on information supplied. The objective of Regulation 5 originates in the EU Food Information to Consumers Regulation 1169/2011.
Popular opinion is divided on any labelling reforms. Dr Sean Cumming was concerned that when so many items for sale are prepared in local kitchens and they are in truth simply being assembled locally – this does not reflect the spirit of Regulation 5. A counter view is that there are so many individual nuances for allergy sufferers that ultimate responsibility should lie with the individual to identify any risk.
The current system is reliant on the requirement that the food business operator understands their recipes, as well as consumer awareness of the law, perceptions of the term ‘pre-packed’, and up to date information being readily available of every food sold including the ‘dish of the day’ in restaurants. Discussions are on-going about whether risks to health should be dependent on such variables, and is there a need to replace Regulation 5 altogether to reduce the risks associated with current food allergen labelling practices.
It is understood from the Food Standards Agency that around 4,500 people are admitted to hospital every year as a result of a food allergy, and there is an average of ten deaths annually. There are around 2 million allergy sufferers in the UK and 70% of them avoid shopping in takeaway restaurants because of their allergies. That’s 1.4 million potential customers who shun food service outlets.
So where does this leave us in the wake of the Coroner’s decision? With Michael Gove, Secretary of State for Environment, Food and Rural Affairs, stating that his department would "await the findings of the inquest and stand ready to take appropriate action" and the chair of the Environment, Food and Rural Affairs Committee stating that "We will be monitoring Defra's response to the call for a review of legislation". The recipients to the Coroner's report now have to respond by 3 December 2018. Any change that results from their feedback may mean that this tragedy may yetproveapositive catalyst for change.
We will follow up further to the responses when they are published, and feel free to get in touch if you have any queries in relation to food law.
The authors wish to acknowledge the assistance of Douglas Scott (Trainee, CMS Sheffield) in preparing this article.