A level of due diligence is needed when identifying and labelling potential allergens in food and drink products. Eoghan Daly explains
Since the introduction of the Food Information Regulations in 2014, consumers can now expect accurate information on 14 different allergenic ingredients in all types of food, whether packaged or served as a meal or snack. Unfortunately, this is not the end of the problem for consumers with food allergies. There is still the issue, due to cross- contamination, of potential and unintentional presence of allergenic material.
The vast majority of food businesses work hard to ensure that food is safe, both in terms of hygiene and in the accurate declaration of the presence of allergens. Despite their best efforts, however, some businesses struggle to provide consistent, precise and reliable information about the allergen risks present due to cross-contamination in their supply chain.
Voluntary measures are in place to warn vulnerable consumers of risks in the form of precautionary ‘may contain' labelling. Deciding when to use a ‘may contain' label is not straightforward. Food businesses that pass on all ‘may contain' statements, without being confident they are accurate, can ‘devalue' the warning, reduce choice and potentially provide false impressions about the allergy risks. Similarly, blanket approaches that ignore all ‘may contain' declarations could provide false assurances to consumers with food allergies.
In response to a request from food businesses, the Institute of Food Safety, Integrity & Protection and the Chartered Institute of Environmental Health brought key stakeholders together to discuss the issues and decide how they could be addressed. The results of the discussion will be published in a white paper at the beginning of September, available to download for free.
Although the majority of deaths reported from allergic reactions to food are associated with undeclared ingredients rather than as a result of cross-contamination, concerns have been expressed about legal liabilities if a consumer were to have an allergic reaction caused by trace allergens. The question of liability is of particular concern in situations where a food business decides not to pass on ‘may contain' information in the belief that the precautionary labelling is unreliable, does not reflect actual risk and has the potential to confuse consumers.
‘May contain' labelling is voluntary, but the legal requirement to provide safe food is fundamental. All food business operators are required to carry out risk assessments and have suitable risk management measures in place to ensure they provide safe food. Allergic reactions to the presence of known allergens are a foreseeable risk and, as such, consumers with food allergies are entitled to expect the provision of accurate and reliable information about allergens present as ingredients or as the result of cross-contamination.
In the event of a death or serious harm arising from undeclared trace allergens, the voluntary nature of precautionary allergen labelling might provide a reasonable defence in a criminal court, if supported by appropriate risk assessment and other due diligence measures. However, in a civil court the burden of proof is lower, ie ‘on the balance of probability', and an effective defence may be more problematic. A robust ‘due diligence' defence would require a robust risk assessment of likely cross-contamination hazards.
Provision of safe food is a fundamental requirement of food legislation and consumers with food allergies can reasonably expect to be provided with information about the safety of food for their specific circumstances. A number of measures would improve the use of ‘may contain' allergen labelling:
- Using existing guidance to obtain better information from suppliers.
- Limiting and simplifying the range of ‘may contain' descriptors.
- Establishing threshold levels for allergen contaminants to improve risk management and communication.
Eoghan Daly is food policy and technical advisor at the Institute of Food Safety, Integrity & Protection
Allergen white paper
Download the Chartered Institute of Environmental Health and the Institute of Food Safety Integrity & Protection's white paper on food allergen labelling from the beginning of September at www.cieh-corporate.com/allergens