The tragic incident of Owen Carey’s death on his 18th birthday due to an allergic reaction after eating a chicken burger that had been marinated in buttermilk shows again the importance that food providers of all types should be given to providing consumers with information on allergens and potentially highlights the need for further revision to food information legislation on allergens.
'Natasha’s Law' was due to be passed this summer and comes in response to the death of Natasha Ednam-Laperouse who suffered an allergic reaction after eating a Pret a Manger sandwich. This legislation, when passed, will require full ingredient listing to be provided only for all food ‘pre-packed on premises for direct sale’ (PPDS) – such as a packaged sandwich or salad made by staff earlier in the day and placed on a shelf for purchase.
Restaurants are still exempt from providing full written ingredient and allergen information for non-prepacked food if the food business operator has indicated “in a conspicuous place and in such a way as to be easily visible, clearly legible and, where appropriate, indelible, that such information can be obtained upon request.”
This continues to put the onus on the consumer to request this information from staff and also requires employers to ensure workers are to be fully trained and informed of the ingredients and any potential allergens in each food. There can be greater risk of human error where policies rely upon verbal communication between the customer and their server, which often takes places in a busy, noisy restaurant where the turnover of staff is high and many of their customers are very young. However, this also allows for flexibility of preparation and changes to menus to be made, particularly for small to medium food business enterprises.
The Food Standards Agency (FSA) has tried to reduce the risk with detailed guidance. This does not have the force of legislation but does indicate best practice. The guidance states:
“FBOs [Food Business Operators] are recommended to have a system in place to ensure that when allergen information is provided orally to consumers, it is supported by that information being available to staff and others in a recorded form (in writing for example) to provide consistency, accuracy and verifiable safety procedures.”
For example, To ensure that consistent allergen information is provided, the FBO should consider using a system where staff direct queries to a nominated person(s). Also, to ensure that oral information is verifiable, ingredients information can be contained on a chart, in a recipe book or on ingredients information sheets, which staff can easily refer to.
Takeaways are also particularly at risk and the FSA guidance deals with this specifically stating the need to ensure that mandatory allergen information is ‘available’ to the consumer:
1. before the purchase is concluded; and
2. at the point of delivery.
The allergen information should be held in written form by the business and available in written form at some point between a consumer placing the order and taking delivery of it.
Whatever the chosen method of presentation, the FBO must always ensure that the allergen information is current and accurate. The allergen information should be provided without any supplementary costs being charged to the customer by the FBO (e.g. premium line numbers).
This is often provided on websites where the customer can click through however the responsibility to do this is theirs.
Some examples provided by the FSA of ways of providing allergen information at the time of order for distance selling include:
- the customer is signposted to where the information can be obtained in writing (e.g. an online menu); or
- staff provide the allergen information orally by telephone whilst referring to the written information.
To ensure that current and accurate allergen information is provided, the food business could ask the customer if allergen information is required before the order is taken on the telephone or online.
Ways of providing written allergen information at the time of delivery include:
- placing stickers on food containers to clearly identify food and allergenic ingredients used in that food (e.g. Chicken satay: ‘Contains:wheat, soy, fish, peanut’); or
- a menu is provided with the order which allows the customer to clearly identify allergenic ingredients in the food, along with clear names, or other appropriate cross-references on food containers;
- written allergen information is presented to the customer, by the member of staff from the business delivering the food together with a means to clearly link the written information to each food item.
In distance sales involving a third party ‘broker’ (such as online aggregators for take away businesses) the third party and the FBO supplying the food to the consumer must work together to ensure that the required allergen information is provided to the consumer, and that the consumer is clear on how to obtain the allergen information. The FBO preparing and providing the food will be best placed to know the allergen content and provide the information to consumers and is therefore ultimately responsible for the allergen information given to the consumer.
Conclusion
The conclusion of the consultation and recommendation of the FSA to DEFRA in the case of Natasha’s Law was that safety was so paramount and consistency so important between packaged foods, whether freshly prepared on-site or not, that it was necessary for full ingredient and allergen information to be provided on both.
The severity of an allergic response is such that, on the same premise, it is likely that the tragic death of this young man will result in further pressure for restaurants and catering facilities to similarly provide, if not full ingredient listings, certainly written information or signs on allergens alongside menu/food choices.
In any event, the FSA guidance should be followed, policies regularly kept under review and training of staff kept up to date. If recipes are altered and include an allergen that has not previously been present then consideration should be given to ensuring this is actively communicated to customers.
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