We have blogged previously on the EU Food Information for Consumers Regulation (the “EU FIC”), which will apply in the UK from 13 December 2014. The EU FIC will mean a number of significant changes for the labelling of pre-packed food. However, it will also affect the provision of information on non-pre-packed/ loose foods, including food sold on deli counters, in pubs, hotels, restaurants, take-aways, cafés; and food supplied by caterers, for example, in staff canteens, at functions or on wedding buffets.
Regulations to enforce the relevant provisions of the EU FIC in England were laid before Parliament on 15 July. These regulations are the Food Information Regulations 2014 (the “2014 Regulations”). Separate but similar regulations will apply in Scotland, Wales and Northern Ireland.
Much of the focus has been on the burden these regulations will pose to businesses. However, a recent event (run by Allergy Aware Kitchen) suggested that both the EU FIC and the 2014 Regulations actually also present opportunities for caterers.
Under the rules in the EU FIC, the 14 food allergens listed (including peanuts, milk, eggs and cereals containing gluten) will need to be specifically highlighted to customers for both pre-packed and loose foods. ‘May contain’ declarations/ notices will be discouraged.
In the UK, operators will be able to provide allergy information in the ways that best suit their individual business, including verbally, if conditions are adhered to, although it may be more difficult to demonstrate effective compliance if a business relies only on verbal communication by staff. Other means of providing the information could include a menu, a chalkboard, or sign/ notice.
To ensure compliance,catering businesses should review menus/ other means of providing allergen information, assess training needs for staff in relation to allergens, engage with suppliers as to ingredients and review food preparation (in terms of cross-contamination). Many have already started or even completed this process.
Enforcement / Sentencing
Under the 2014 Regulations, failure to comply with allergen labelling/ information requirements for both pre-packed and loose foods may be dealt with from the outset as a criminal prosecution in the magistrates’ court (even though the primary enforcement mechanism in England for failure to comply with other provisions of the EU FIC will be Improvement Notices). However, the good news is that the due diligence defence contained in the Food Safety Act 1990, will be available.
The penalty under current fine levels is £5000 per offence (level 5). However, if the proposed changes to fine levels under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 are implemented (see previous blog on this issue) magistrates will have the authority to impose an unlimited fine for each offence.
The Sentencing Council is currently consulting on guidelines for sentencing various ‘corporate’ offences, including offences relating to food safety and hygiene. The current proposed scope of those guidelines does not include the 2014 Regulations (although it may conceivably be extended in due course). However, the proposed process in the guidelines of considering culpability, harm and turnover are likely in practice to be followed by a court in the event of a prosecution for failure to comply with the allergen information requirements under the EU FIC. A mistake in terms of allergen information can lead to considerable harm (as an allergic reaction could result in death in the worst case scenario), so ensuring that culpability is low, or better that a defence of ‘all due diligence’ can be established, will be important.
The Allergy Aware Kitchen Event went further and suggested that, actually, compliance with the EU FIC and the 2014 Regulations could also present business opportunities for caterers. Some of the statistics presented at that Event were surprising for those who do not suffer from a food allergy or intolerance:
- Over 1 million people in the UK have an ‘IgE mediated’ food allergy i.e. an instant response (Allergy UK presentation)
- 6-8% of children have food allergies (Allergy UK presentation)
- Coeliac disease believed to affect 1 in 100 (FreeFrom presentation)
- 1 in 70 Children have potentially fatal nut allergy (FreeFrom presentation)
How does this present an opportunity? Well, a number of speakers identified that food allergy and intolerance sufferers dictated where they and their friends ate. An allergy sufferer and blogger on this subject, explained how she and the allergy ‘community’ want to be able to eat out with their friends and try new places without military planning. As such, businesses which can explain to allergy sufferers exactly what allergens are in their food (and eliminate cross-contamination if claiming to be free from those allergens) can expect to welcome a whole new group of customers.
This reflects recent comments from the well-known TV and Michelin-starred chef Tom Kerridge, who said in the Publican Morning Advertiser that caterers should view the forthcoming legislation as a positive opportunity to improve customer experience. He went on to explain that the more staff know about the dishes they are serving, the better the customer experience will be.
Whilst much legislation represents a burden for businesses it may be sensible to take a step back in relation to this legislation and consider the potential new customer base that compliance may bring, given the significant proportion of the UK population who suffer from food allergies or intolerance. Taking robust measures to ensure compliance will, of course, also limit the risk of prosecution because of the due diligence defence available.