Introduction
A fundamental change to food allergy labelling has taken effect from 1st October 2021 in accordance with The Food Information (Amendment) (England) Regulations 2019[1] (FIR 2019) (and the equivalent legislation for devolved nations). It is important to consider the scope of this change and whether it goes far enough to protect consumers with food allergies.
Background
FIR 2019 is commonly known as ‘Natasha’s Law’. The legislative changes have been propelled following the tragic death of Natasha Ednan-Laperouse, who unknowingly consumed a baguette, containing sesame, from a Pret a Manger outlet in 2016.
Before going straight into the changes taking effect from Natasha’s Law, it is worth offering context to food allergy information and labelling laws.
Food hypersensitivities
There are three main types of food hypersensitivities:
Food Allergy
Food allergic reaction occurs when the body’s immune system erroneously treats protein – even a small amount – as a threat and reacts to it[2][3]. The body’s reaction is to release chemicals[4]. This reaction depending on the severity includes itchiness, difficulty breathing and (the most severe being) anaphylaxis, which could prove fatal[5].
Food Intolerance
Food intolerance does not involve the immune system but occurs through the digestive system. The symptoms can include abdominal pain, bloating and diarrhoea[6]. Whilst the symptoms are undesirable, they, however, are not life-threatening but can take time to recover[7].
Coeliac Disease
Coeliac disease is an auto-immune condition which occurs when gluten is consumed and is harmful to the gut-lining[8]. Gluten is found in certain cereal grains including wheat, rye and barley and through cross-contamination in oats[9]. There is a range of symptoms (making it difficult to obtain a correct diagnosis) including: bloating, headaches, hair loss and joint pain[10]. A gluten-free diet can help stop these symptoms.
The 14 allergens
Regulation (EU) No 1169/2011
According to Annex II of Regulation (EU) No 1169/2011[11] there are 14 allergens that must be declared under food law (it is important to note, other ingredients can also cause allergic reactions and food intolerant symptoms). Regulation (EU) No 1169/2011 is enforced through the domestic legislation The Food Information Regulation 2014 (FIR 2014)[12].
Why these 14 ingredients?
According to the European Food Safety Authority (EFSA), these 14 ingredients are the most prevalent in terms of causing adverse reactions, based upon scientific research, within the European population[13].
Declaration of allergen ingredients
So, we now understand the impact of the various food hypersensitivities; the relevant UK legislation which underpins it and how scientific research supports in law-making. However, the format of declaring allergens depends very much on its packaging, and Natasha’s Law makes a significant change in this matter. There are three main forms of packaging referenced in food law: prepacked, non-prepacked and prepacked for direct sale (PPDS).
The following information is from the Food Standards Agency’s website.
Prepacked Food
Food is considered prepacked when it is put into packaging before being offered for sale and:
is either fully or partly enclosed by the packaging
cannot be altered without opening or changing the packaging
is ready for sale to the final consumer or mass caterer
Non-prepacked Food
Non-prepacked foods include:
foods sold loose in retail outlets
foods which are not sold prepacked, such as meals served in a restaurant and food from a takeaway
food packed on the sales premises at the consumers’ request, such as a sandwich prepared in front of the consumer.
Prepacked for Direct Sale (PPDS)
PPDS food is food that is packed before being offered for sale by the same food business to the final consumer:
on the same premises
on the same site
on other premises if the food is offered for sale from a moveable and/or temporary premises (such as marquees, market stalls, mobile sales vehicles) and the food is offered for sale by the same food business who packed it.
The scope of Natasha’s Law
With the above context, we can now appreciate the framework the changes from Natasha’s Law apply to, specifically:
Declaration method of the 14 allergens, and
PPDS foods
Pre 1st October 2021
Allergen labelling in relation to PPDS foods prior to 1st October 2021 were communicated (like non-prepacked foods), namely:
Food business operators had the option to declare the allergen information either through verbal or written communication.
Due to the ambiguity – where an erroneous assumption can easily be made by consumers that lack of allergen labelling equates to no allergen ingredients in the food – thereby creating a potential loophole, with devastating consequences. In the case of Natasha Ednan-Laperouse’s death, the Coroner, Dr Sean Cummings stated: “In my opinion there is a risk that future deaths could occur unless action is taken”[14].
To close this loophole, amendments were made to FIR 2014, as set out in FIR 2019 (Natasha’s Law).
Post 1st October 2021
From 1st October 2021 in relation to PPDS foods, verbal communication of allergens will no longer be an option for food business operators and consumers will see PPDS foods labelled (like prepacked foods) with:
A full written list of ingredients on the packaging or label attached to it, and
The allergen ingredients emphasised in that list
PPDS changes from FIR 2014 to FIR 2019
From a legislative perspective, the amendments seeking to close the gap in allergy labelling laws which, failed to prevent the death of Natasha Ednan-Laperouse and (by introducing these changes) aims to stop it from happening again. However, as this change relates to PPDS foods only, it is therefore limited on how far the desired effect – namely reducing allergy-related deaths - reaches.
PPDS foods, have two defining elements ‘prepacked’ and ‘for direct sale’.
Prepacked
In practical terms, this means the packaging must be packed (and the food cannot be altered without opening the packaging) before the order is placed. However, there is a potential and an obvious get-out clause for food businesses and that is to pack the food after the order has been placed. Now, it is unlikely major food businesses will attempt to do so, due to reputational impact and the expectation to ensure each store is consistent with the company’s policy. However, smaller and individual businesses who rather not fall foul of the law may see this as a safe option in ensuring the law is not applicable to their products. Therefore, in my opinion, it can be regarded that FIR 2019 does not go far enough in achieving its purpose.
For Direct Sale
The description of ‘for direct sale’ is simply, the business, which makes the food is the business that sells it which usually happens on the same premises, site or from a temporary/moveable location.
On a practical level, the use of the phrase ‘direct sale’ is purely an academic point. Regardless of whether the food product is sold directly by the producer or through a third-party company, if it’s prepacked, a complete ingredients list is required with the allergens emphasised.
Legislative Impact
Does this change achieve its purpose, namely reducing allergy-related deaths? As I mentioned earlier, there is an obvious loophole – food businesses can pack the food after the order being placed and thereby making the product out of the scope of the new legislative requirements. On the other hand, it can be argued if this law was in force in 2016, then Natasha Ednan-Laperouse would be alive and therefore, the legislation does achieve its purpose, to an extent at least, as I explain below.
The amount of PPDS foods (usually found in delis and cafes) consumed is significantly less, based on anecdotal observations, when compared with non-prepacked foods (foods sold loose in retail, or unpacked (i.e. restaurants) or packed after the order (i.e. take-aways/sandwich shops)).
Owen’s Law
It is for this reason, Owen Carey’s family – who died in 2017 from eating out in a restaurant, despite telling staff of his milk allergy – are pushing for a change in the law which mandates restaurants to display allergen information on their menus [15].
So, whilst on the one hand, a significant change is made to allergy labelling laws, and (from my knowledge) probably the first of its kind where a death of an individual made a major amendment to food law. Nonetheless, the death of Owen Carey demonstrates, in my view, a change is needed in relation to non-prepacked foods, given that restaurants and take-aways make a large portion of the food industry.
Written by: Eesa Adam Karim
OU Student and OULS Guest Writer
Disclaimer: The views expressed in this article are solely of the author.
[1] The Food Information (Amendment) (England) Regulations 2019 (legislation.gov.uk) [2] Effects that allergies have in the body - Food hypersensitivity [3] Food allergy - NHS (www.nhs.uk) [4] Effects that allergies have in the body - Food hypersensitivity [5] Food allergy - NHS (www.nhs.uk) [6] Food allergy - NHS (www.nhs.uk) [7] Effects that allergies have in the body - Food hypersensitivity [8] Coeliac disease - Causes - NHS (www.nhs.uk) [9] Effects that allergies have in the body - Food hypersensitivity [10] Effects that allergies have in the body - Food hypersensitivity [11] Regulation (EU) No 1169/2011 of the European Parliament and of the Council (legislation.gov.uk) [12] The Food Information Regulations 2014 (legislation.gov.uk) [13] Allergens in food: scientific advice updated | European Food Safety Authority (europa.eu) [14] What is Natasha's Law? — Natasha Allergy Research Foundation (narf.org.uk) [15] Allergic teenager who died was misled about Byron burger – coroner | Allergies | The Guardian
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