Out-Law Guide | 25 Feb 2020 | 5:52 pm | 3 min. read
Recent fatalities involving allergens prompted the UK government to seek views on amendments and clarifications to the requirements for foods pre-packed on site for direct sale to consumers (PPDS foods). New, more prescriptive requirements will be imposed on businesses providing PPDS foods, which come closer to the requirements for pre-packed foods.
Increased societal and media awareness of the complex allergen issue has resulted in greater regulatory scrutiny, with enforcement action on the rise against food business operators deemed to be non-compliant. The regulatory changes being introduced in England will bring with them increased obligations for food businesses, with those failing to meet those obligations risking prosecution and significant fines and reputational damage that this can attract.
Separate equivalent legislation following the UK consultation is planned for Scotland, Wales and Northern Ireland.
The legislative framework governing the provision of food allergen information is largely set by the Food Information to Consumers Regulation (EU 1169/2011) (FIC), which continues to have effect in UK law following the UK's departure from the EU and the current transition period. FIC requires that food which is prepacked - for example, a ready meal sold in a supermarket – carry mandatory information including an ingredients list, with details of the 14 prescribed allergens present emphasised in that list (the allergenic information).
The regulatory changes being introduced in England will bring with them increased obligations for food businesses, with those failing to meet those obligations risking prosecution and significant fines and reputational damage that this can attract.
Food information requirements currently differ for non-prepacked food. Non-prepacked food includes food such as loose fruit and vegetables; food packed on the sales premises at the consumer's request; and food pre-packed for direct sale (PPDS).
FIC has allowed EU member states to distinguish between prepacked foods and non-prepacked foods in how mandatory allergen information is provided to consumers. In the UK, the 2014 Food Information Regulations (FIR 2014) permits a food business to provide allergen information for PPDS foods "by any means the operator chooses including ... orally". Where the business chooses to do so orally, the fact that allergen information can be ascertained in this way needs to be made clear to customers by way of a label, notice or menu.
In January 2019, following a number of fatalities involving food allergens, the UK government consulted on possible amendments and clarifications to the requirements for PPDS foods. The consultation was carried out by the Department for Environment, Food and Rural Affairs (Defra) on behalf of the Food Standards Agency (FSA) in England, Wales and Northern Ireland, Food Standards Scotland (FSS) and the Department for Health and Social Care (DHSC).
The consultation proposed four policy options, one non-legislative and three legislative. They were:
The consultation concluded that legislative change was necessary. In England, that change will be implemented by the 2019 Food Information (Amendment) (England) Regulations (FIR 2019), which will come into force on 1 October 2021. Changes will also be made in due course in parallel regulations for Northern Ireland, Scotland and Wales.
FIR 2019 will require the packaging or labels of PPDS foods sold in England to display the following information clearly:
The requirements in respect of other non-prepacked foods are unaffected by the changes.
The FSA is currently consulting on proposed amendments to its existing technical guidance on food allergen labelling and information requirements in order to assist food businesses in bringing their procedures into compliance with the changes required by FIR 2019. The consultation closes on 6 March 2020.
The draft guidance seeks to clarify the definition of a PPDS. It currently states that a food would only be a PPDS if:
Food in packaging which is either completely or partially enclosed and cannot be altered without opening or changing the packaging, and which is sold to other businesses, is pre-packed food and already requires allergen labelling.
Additional research by Simon Tingle of Pinsent Masons, the law firm behind Out-Law.