Food and Agri Update - Friday 15 September


Food Standards Agency (FSA) Allergen Guidance Update

FSA publishes updates to best practice guidance on food allergen labelling Technical Guidance on Food Allergen Labelling and Information Requirements

This best practice technical guidance aims to support food businesses when applying allergen labelling.

The FSA technical guidance is recommending a number of changes in relation to how food businesses should use Precautionary Allergen Label (PAL) and is advising that food businesses should:

  • Only apply a PAL if there is an unavoidable risk of allergen cross-contamination which cannot be sufficiently controlled by segregation and cleaning.
  • Specify which of the 14 major allergens the PAL refers to – for example, using “may contain peanuts” rather than a generic “may contain nuts” statement.
  • Use PAL statements in combination with a ‘vegan’ label where a risk of cross-contamination with an allergen has been identified. A ‘vegan’ label communicates different information to a ‘free-from’ claim, which is food safety information aimed at different consumer groups.

The technical guidance goes into further detail about why businesses should not use a PAL statement alongside a “free from” statement and gives updated information on best practice for the use of No Gluten Containing Ingredient (NGCI) statements for food businesses in the non-prepacked food sector. 

The update also supports the FDF Change Management of Allergen Information guidance (Opens in a new window),

Protein Drink Warning

The senior coroner for Milton Keynes, Tom Osborne, has written to NHS England and the Food Standards Agency urging the use of “prominent” warnings on labels of protein products.

Rohan Godhania, 16, of Ealing, west London, fell ill after drinking a protein shake on August 15 2020.  He died three days later at West Middlesex Hospital after suffering “irreversible brain damage”.  The cause of death was eventually identified as a late onset of the rare disease ornithine transcarbamylase (OTC) deficiency.  The urea cycle disorder prevents the breakdown of ammonia, causing it to build up to lethal levels in the bloodstream, and can be triggered by a protein load.

Coroner Tom Osborne said drinking the protein shake on August 15 2020 had “triggered an acute reaction”.  In subsequent statements to NHS and FSA Mr Osborne said supplements were “easily accessible to the general public” but current labelling failed to “adequately inform consumers” about the potentially fatal dangers posed to individuals with urea cycle disorder.

“High protein supplements and drinks are easily accessible to the general public, yet their labels fail to adequately inform consumers about the potential dangers posed to individuals with urea cycle disorders, such as Ornithine Transcarbamylase deficiency,”.

“This genetic disorder can lead to severe medical emergencies, requiring immediate medical intervention to prevent life-threatening complications.

“This disorder can be triggered by the sudden increased ingestion of protein.

“Consideration should be given as to whether the labels should prominently display a warning about the potential risks for individuals with an undiagnosed urea cycle disorder and include clear and concise information on symptoms of this and the importance of seeking immediate medical advice.”

In conclusion, he added: “In my opinion there is a risk that future deaths will occur unless action is taken and I believe NHS England and the Food Standards Agency have the power to take such action.”

He added that NHS England and the Food Standards Agency are under a duty to respond to the report by Oct 2.

Advisory statements

In 2004 a voluntary agreement was reached between Government officials and food supplements industry representatives covering food supplement products containing high levels of vitamins and minerals. The agreement covers advisory statements to be included on labels. The advisory statements, and an explanation of the background to it can be found at Main heading (

Writing on the relevant protein product did have the precautionary statement: “consult your doctor prior to use if you have a medical condition” but Rohan’s OTC was undiagnosed. 

The risk of undiagnosed OTC is very low however where the harmful consequences are so severe food businesses in this sector may wish to consider voluntarily revising warning information to provide greater clarity; such as directly referencing to request an ammonia test in the event of  sudden severe sickness.

FSA Board Papers for 20 September Meeting

The agenda and papers for the 20th September 2023 Board meeting have been published. You can register to attend the meeting here: register to view it online (Opens in a new window)

The agenda for this meeting includes: 

  • Genetic Technology (Precision Breeding) 
  • Annual Animal Welfare Update 2022/23 
  • Incidents and Resilience Annual Report 2022/23 
  • Risk Analysis Process and Regulated Products Service Update

A full agenda and published papers can be viewed in the Board meeting section of the FSA website. 

FSA overview of Food Incidents and Outbreaks 2022/23

 The FSA was notified of 2,038 food and feed safety incidents in England, Northern Ireland, and Wales during 2022/23.  This represents a 13% decrease when compared to 2021/22.  Fluctuation in incident numbers year on year is common, and subject to many factors such as new regulations coming into force, or a persistent large-scale issue (for example, ethylene oxide in 2020-2021). 

The top four hazard types for incidents notified to the FSA in 2022/23 were:

  1. pathogenic micro-organisms (572 being 28% of total),
  2. allergens (314 being 15% of total),
  3. poor or insufficient controls (145 being 7% of total) and
  4. residues of veterinary medicinal products (144 being 7% of total)

Of this total number, incidents associated with pathogenic micro-organisms make up the highest proportion at 28%; a 2% increase on the previous year.  Salmonella continues to account for the most microbiological incidents and the most common outbreaks that require an FSA operational response.

Levels of allergen incidents remain broadly consistent with previous years; 314 in 2022/23 compared to 320 in 2021/22 and 350 in 2019/20.  In 2020/21 only 180 allergen incidents were recorded which is attributed to the decline in eating out and the reduction in retail product lines, during the Covid pandemic

Numbers of incidents involving poor and insufficient controls (145) are down from 296 associated incidents in 2021/22 but remain within the top 4 hazards in the overall total number of incidents.  The increase in 2021/22 was the result of a non-routine incident linked to imports transiting through EU and avoiding UK border checks.  Before 2021/22 numbers were more in line with this year’s figure (95 in 2020/21 and 165 in 2019/20).

Incidents involving residues of veterinary medicinal products (144) show a 73% increase from the 83 reported in 2021/22.  The FSA are exploring with the Veterinary Medicines Directorate (VMD) and Animal and Plant Health Agency (APHA) the reasons for this increase.

Further detail including root cause analysis of the various hazard types is available via the report Incidents and Resilience Annual Report 2022/23 | Food Standards Agency

ASA Rulings

What is an ad?

Just Spices GmbH  Upheld  Social media (influencer or affiliate ad)  13 September 2023

Two TikTok posts on Sevda Ela’s account which promoted Just Spices were held not to be obviously identifiable as ads.

Two TikTok posts on Sevda Ela’s account, @sevda.ela:

a. The first post, seen on 20 April 2023, featured a video of Sevda Ela making herself boiled egg on toast with feta cheese for breakfast. She picked up a can of egg topping and put it on her toast. She did not say where the egg topping can was from and the brand name on the can was not visible. The caption in the post stated, “#egg topping is from @justspices_uk not an AD but I do work with them [love heart emoji].” The Tik Tok account @justspices_uk commented on the video saying, “Not just spicy just super tasty! Code justsevda will get you a little extra something [hearts in eyes emoji].” The comment was in response to a user who asked what egg topping was used and whether it was spicy.

b. The second post, seen on 23 April 2023, featured a video of Sevda Ela eating crumpets for breakfast. She mentioned a list of other foods she had in her breakfast, including sandwich seasoning, which she said was from Just Spices. The caption in the post stated, “#eatwithsevda.”


The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.

Firstly the ASA looked at a commercial relationship and found with contractual agreements between the parties were in place at the time the posts were made.

Although Ms Ela was not required to publish the TikTOk posts and did not receive a fee for them.

However the contracts stated that Ms Ela would receive Just Spices products for free and the ASA considered that constituted a payment to her.

The ASA held because she had been gifted products as part of ongoing commercial agreements, they considered that those gifted products constituted payment for the posts complained about.

The contracts stated she should convey a positive message about Just Spices at all times during the term of the agreements, this included the time of posting the two TikTok posts.

The ASA considered that those two requirements would, in effect, restrict aspects of Ms Ela’s control of her social media content and established that Just Spices had sufficient control over the content of her social media posts, in conjunction with a payment arrangement by way of free products, for the posts to be marketing communications that fell within the remit of the CAP Code.

The ASA held there was nothing in the posts content, such as “#ad” placed upfront, that made clear to those TikTok users viewing them that they were ads. The ASA considered the caption on ad (a), “#egg topping is from @justspices_uk not an AD but I do work with them” would have added to the impression that the post was not a marketing communication. It was concluded that the posts were not obviously identifiable as marketing communications and breached the Code.

In future ads should be obviously identifiable as marketing communications, for example, by including a clear and prominent identifier such as “#ad”.

VIVA Viva! t/a Viva!  Upheld  06 September 2023

Two paid-for social media ads for Viva! were irresponsibly targeted and were likely to cause unnecessary distress and serious and widespread offence. 

The CAP Code stated that marketing communications must be prepared with a sense of responsibility to consumers, and must not cause serious or widespread offence, fear or distress without justifiable reason. The fear or distress should not be excessive and marketers must not use a shocking claim or image merely to attract attention.

The ASA acknowledged that the ad was intended to be a parody of ads for popular food products like fruit yoghurts, which were typically light-hearted and wholesome in tone. However, the ad featured blood and offal being mixed into the yoghurt in the place of fruit or jam, with close-up shots of the offal. The woman was shown eating the blood and offal whilst smiling, with blood dripping from her mouth and teeth. Although it was acknowledged people would understand the ad was intended as a comment on animal welfare, the ASA considered the graphic and gory imagery was likely to shock and cause a sense of disgust.

The ASA considered that the juxtaposition of the woman’s happy and wholesome demeanour with graphic close-ups of blood and offal was likely to further highlight the graphic and gory imagery.

The ASA also considered language such as “the umbilical cord flavour”, “… the stolen milk of grieving mothers. Taste the torment in every mouthful. Blended with brutality. Be complicit, with Killer yoghurts”, alongside the graphic and gory imagery, was likely to be seen as frightening and distressing to children in particular.

The ASA  considered the distress likely to be caused by this ad, particularly to children, was unjustified.  They therefore concluded that the ad was likely to cause serious or widespread offence, and unjustified distress.

The ASA understood the ad had been seen by children on Facebook Watch, Duolingo and an online educational game. Viva’s exclusions had proved insufficient to prevent the ad from being seen on apps that were likely to appeal to children. It was therefore concluded that the targeting exclusions had been insufficient to target the ad away from children.

Poki Games was a free online gaming platform. The ASA considered that, although it was not explicitly targeted at children and the terms of use stated that users were over 16, the games it offered were likely to be used by children as well as adults.

Duolingo was a free language learning app with an age restriction of 4+. The ASA considered that, although it was not explicitly targeted at children, it was likely to be used by children as well as adults.

Viva said the ad was a theatrically staged parody and that viewers would understand that the blood was not real and it wanted to expose aspects of dairy farming that consumers did not see. The charity also said it had targeted adults in the release of this advert.

Westminster Food Forum on transparency of data in the food supply and the Food Data Transparency Partnership (FDTP)– Data Collection to be Voluntary

The plan around the setting up of the Food Data Transparency Partnership between government bodies, private organisations, charities and food business was to make it mandatory for large businesses to publicly report against a consistent set of health metrics and explore a similar approach to sustainability and animal welfare.  This was to be achieved via a system of mandatory measurement to be used by industry to measure its impact across three areas: public health (including HFSS and obesity), animal welfare and supply chain emissions. A fourth working group was to be charged with ensuring there is transparent reporting and developing the data to back it up.

The Westminster Forum event took place on Tuesday 5th September to debate transpaency of data in the food supply alongside the Food Data Transparency Partnership.   Sean Povey, deputy director, diet, obesity and healthy behaviours at the Department of Health and Social Care (DHSC),  revealed at this event that reporting will now only be required on a voluntary basis

“Our ministers were really clear that in the context of the current cost of living crisis and continued pressure on businesses and consumers with rising food prices, they didn’t want to do anything that would add to the burden on businesses”.

Jessica Burt of Mills & Reeve also spoke at the Westminster Forum event and referenced the importance that a clear proportionate and achievable objective should underline any additional responsibility before it is placed on business. The use of voluntary measures alongside some really focussed metrics and aims has seen some brilliant business engagement in voluntary/self-regulatory schemes for example the Portman Group in the alcohol sector.

Summary of positions provided in article Is transparency the loser in data climb down?  - Foodservice Footprint  This shows a level of disappointment in the move to a voluntary system, particularly from charitable and consumer action bodies, but, as pointed out by Jessica at the event, it can be easy to lose track of the 'why' in the rush to demand food businesses provide more and more information in the pursuit of the holy grail of transparency. Far better to provide a structure and goals that companies wish to reference their compliance to.

Voluntary Whiskey Standards

The British Standards Institution has defined best practice for whisky distillers in a new set of guidelines.  BS 8636:2023 | 11 Sep 2023 | BSI Knowledge (

The voluntary standard (BS 8636) provides a specification of the production process for the main categories of whisky traded globally.

It builds on UK and Irish industry experts’ knowledge of whisky production, setting out how producers should deliver a specific colour, aroma and taste.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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