BCL partner, Richard Reichman, discusses allergen labelling changes and the Food Standards Agency's consultation on new technical guidance.
Against a backdrop of frequent media attention and public concern regarding allergen issues, for example following several tragic fatalities, a government consultation concluded that changes were required to the provision of allergen information for food which is prepacked for direct sale ('PPDS'), for example, a boxed salad in a chiller cabinet which is packaged and sold by a food business.
As a result, The Food Information (Amendment) (England) Regulations 2019 were enacted late last year and come into force on 1 October 2021. The new legislation requires that PPDS foods have the name of the food and a full ingredients list, with allergens emphasised (e.g. in bold), on the packaging or a label attached to the packaging (as is currently required for prepacked foods).
Draft Technical Guidance
To help businesses comply with these significant changes (and highlight where they have not), the FSA is now consulting on changes to its relevant technical guidance (Food allergen labelling and information requirements under the EU Food Information for Consumers Regulation No 1169/2011: Technical Guidance) ("Draft Guidance"). The proposed changes reflect the new legislation by, for example, removing references to signposting consumers to where allergen information for PPDS food can be found (e.g. "Ask us about allergens" signs), and also make technical and drafting updates, including the provision of best practice guidance.
Examples of businesses which are covered by the new requirements are set out in Part 3 of the Draft Guidance: "food manufacturers, packers, retailers, cafes, fast food outlets, delicatessens, butchers, bakeries, institutional and other types of caterers".
The Draft Guidance defines PPDS food as "a food that is packed before being offered for sale by the same food business to the final consumer: i) on the same premises; or ii) on the same site; or iii) 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) if the food is offered for sale by the same food business who packed it".
Examples of foods that are caught by this definition include boxed sandwiches (sold from the premises that they were packed in); foods packaged and then taken by the same operator to their market stall to sell; and a butcher who buys cuts of meat to make burgers and sausages which are prepacked to be sold on the same premises.
Food is considered "prepacked" when it is "put into packaging prior to before being offered for sale and: is either fully or partly enclosed by the packaging; and cannot be altered without opening or changing the packaging; and is ready for sale to the final consumer". The Draft Guidance excludes, for example, food on a non-disposable plate covered by cling film from this definition.
Annex B of the consultation document sets out three criteria which must all be answered in the affirmative for food to fall within the definition of PPDS (and which, subject to the consultation responses, may be included in the final guidance):
- Is the food presented to the consumer in packaging?
- Is it packaged before the consumer selects or orders it?
- Is it packaged at the same place it is sold?
The Draft Guidance explains that food businesses selling PPDS food by distance selling (e.g. internet or telephone takeaway orders) must provide the mandatory allergen information before a product is purchased and when it is delivered, but a full list of ingredients is not required to be provided.
We noted in an earlier article on this topic that the anticipated changes were likely to be more challenging for smaller independent businesses. It may be that some businesses will, for example, change the products that they offer or move to avoid prepacking foods; the Draft Guidance states that "[PPDS] food does not cover food placed into packaging after a consumer orders it (for example a freshly prepared sandwich or burger that is made and wrapped after taking an order)". Dependent on the size and nature of a business, this approach may be impractical.
Businesses that offer foods which are packed on-site before a customer selects or orders them, will want to carefully consider the new legislation and the FSA's consultation on its revised technical guidance. Food businesses should assess the practical and financial impact of the changes and consider responding to the consultation with their comments.
Food safety management systems will need to be carefully updated and rolled out prior to October 2021. Following the recent developments, we have seen a marked increase in regulator interest targeted at allergen procedures. It is likely that allergens will remain a high priority for regulators in future food business inspections and following any reported allergen incidents. Non-compliance with the existing or new requirements risks prosecution, severe penalties and reputational damage.
The consultation is available to view in full here and closes on Friday 6 March 2020.
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