Deciphering UK food allergen labelling law

When my son was initially diagnosed as allergic to peanuts, the hospital doctors advised us:

  • To check the ingredients list on food packets and avoid anything containing peanuts and nuts.
  • That he could eat products that say “may contain traces of nuts”.

We were told that, in the UK and EU, the ingredients list on food packaging must be accurate. I remember asking why, in that case, food companies bothered with “may contain” wording? I was told “it’s just the lawyers”. Curious, I decided to look into the UK’s food allergen labelling laws, to find out:

  • What details food manufacturers must provide.
  • The point of “may contain” wording.
  • How the existing UK food allergen labelling laws are going to change in December 2014.

The current food allergen labelling laws (until December 2014)

The starting point is that it is an offence to sell, offer for sale or possess for sale, food which is either:

  • Falsely described.
  • Labelled in a way which is likely to mislead as to its nature, substance or quality.

(Section 15, Food Safety Act 1990 ).

So, if you label a food “nut free” and it is, in fact, a bag of nuts, you’ve committed a criminal offence.

The general labelling requirements

The Food Labelling Regulations 1996 (SI 1996/1499) (as amended) (FLR 1996) set out the detailed labelling requirements. All prepacked food must be marked with various things, including:

  • The name of the food.
  • A complete ingredients list (with a heading which consists of or includes the word “ingredients”).

So, if the smallest trace of peanut has been intentionally added to the recipe, “peanut” must appear in the ingredients list.

The allergen labelling requirements

If a prepacked food or alcoholic drink contains one of the top 14 food allergens (or an ingredient made from one of those 14 allergens), this must be declared on the label, with the allergen either being specified in the name of the food or clearly marked elsewhere on the label. Alcoholic drinks which don’t have an ingredients list should be labelled “contains [insert name of allergen(s)]”.

The 14 allergens (listed in Schedule AA1 to the FLR 1996) are:

  • Cereals containing gluten.
  • Crustaceans.
  • Egg.
  • Fish.
  • Peanuts.
  • Soybeans.
  • Milk.
  • Nuts (i.e. almonds, hazelnuts, walnuts, cashews, pecan nuts, Brazil nuts, pistachio nuts, macadamia nuts and Queensland nuts).
  • Celery.
  • Mustard.
  • Sesame.
  • Sulphur dioxide and sulphites (at concentrations of more than 10 mg/kg or 10 mg/litre).
  • Lupin.
  • Molluscs.

Although peanuts can also be called ground nuts, monkey nuts, goober nuts or mixed nuts, the word “peanut” should be used for allergen labelling.

The allergen labelling requirements do not apply to:

  • Non prepacked foods.
  • Foods which are prepacked for direct sale.
  • Food sold at a catering establishment (which means “a restaurant, canteen, club, public house, school, hospital or similar establishment (including a vehicle or a fixed or mobile stall)…”).

The allergen labelling requirements only cover ingredients which have been intentionally added to the food’s recipe. They do not cover accidental cross-contamination.

Beware of foods that aren’t prepacked!

All this begs the question: what is meant by “prepacked”?

The FLR 1996 define “prepacked” as food which is:

“put into packaging before being offered for sale in such a way that … [it] … cannot be altered without opening or changing the packaging and is ready for sale to the ultimate consumer or to a catering establishment…”

The FLR 1996 definition of “prepacked for direct sale” includes food which is prepacked on the retail premises (or, in relation to flour confectionery, bread and edible ices, is prepacked either on the retail premises or on the retailer’s other premises).

So it follows that the following are examples of foods not currently covered by the allergen labelling requirement:

  • Foods sold loose.
  • Cake or pastries baked and sold in a cake shop.
  • Bread rolls baked in-store at a supermarket.
  • Ice cream sold by the scoop in an ice cream shop or ice cream van.
  • Meat sold from a delicatessen counter.
  • Meals served in a restaurant, cafe, take away etc.

(As well as falling outside of the FLR 1996 definition of “prepacked food”, it’s worth noting that these types of food items also have a high cross-contamination risk.)

Allergen warning boxes

allergy_advice_1There is no requirement for manufacturers to include allergen warning boxes: they are voluntary. If an allergen warning box is included on the label, it must be true and not misleading (section 15, FSA 1990).  So, if you pick up a loaf of bread from a supermarket shelf and see “Contains: nuts”, then you do not need to read the full ingredients list to know that the loaf is not suitable for a nut allergy sufferer. In this way, the allergen warning box serves as a handy shortcut.

However, as such boxes are voluntary, if there is no warning box, you cannot safely assume a food is allergen free: you must read the ingredients list.

“May contain” wording

allergy_advice_2

“May contain” wording comes in a variety of forms, for example:

  • May contain nuts.
  • May contain nut traces.
  • Recipe: No nuts. Ingredients: Cannot guarantee nut free.
  • Not suitable for nut allergy sufferers.
  • Produced in a facility that also processes nuts.

Whilst the ingredients list must be accurate, “may contain” wording is intended to provide for the situation where allergens might have got into the product by accident. For example, because the manufacturer’s machinery was used to make a nutty chocolate bar before producing the plain chocolate bar that you want to buy.

As with allergen warning boxes, manufacturers are not required to include “may contain” wording. Its use is voluntary. So, a packet of biscuits which has no peanuts listed in the ingredients, but carries a warning saying “may contain peanuts” might:

  • Contain no traces of peanut whatsoever. The manufacturer might have included a warning as the factory also handles peanuts, and therefore there is a small (but genuine) chance of cross contamination.
  • Contain no traces of peanut whatsoever. The manufacturer might have a blanket approach of adding “may contain” wording to all of its products, whether or not there is any real risk of contamination.
  • Contain traces of peanut, which (despite the manufacturer’s best efforts) have accidentally got into the product during the manufacturing process.
  • Contain traces of peanut, because the manufacturer doesn’t clean its machinery properly before manufacturing a new product.

So, faced with a “may contain” label, how can you assess the true risk? Answer: you can’t. How do you know if the risk is genuine or if the manufacturer is just trying to cover itself? Answer: you don’t.

As with allergen warning boxes (“Contains…”), if there is no “may contain” warning, this does not necessarily mean there is no risk of cross-contamination. It might be that the manufacturer’s policy is not to use “may contain” wording.

The Food Standards Agency is expected to publish a report on allergen advisory labelling in autumn 2013. This will look at whether “may contain” wording is being used appropriately and whether different warning statements indicate different levels of risk to the consumer.

In the meantime, here is the advice Dr Andrew Clark gave in a 2010 Q&A piece for Mumsnet, in case you find it useful:

“[May contain labels] just signify a risk, which is real but very small and that risk is difficult to quantify because the food industry just doesn’t know how much nut accidentally gets into foods. However, you can make some sense of it by thinking that some foods, eg chocolate, biscuits, cakes and bread are higher risk, as these are often made in nut-containing versions. Other foods with ‘traces’ labels on, such as orange juice are clearly lower risk.”

[Update (September 2013): see my post on Oreo for how I try to make sense of “may contain” labels and also my list of nut free food.]

The new food allergen labelling laws (from December 2014)

So, what’s going to change on 13 December 2014, when food companies must comply with the Food Information for Consumers Regulation 1169/2011 (EU FIC)? The short answer is:

  • Allergy warning boxes will no longer be permitted.
  • Allergens must be highlighted in the ingredients list (for example, in bold, italics, underlined or highlighted in a different colour).
  • “May contain” warnings will remain unchanged.
  • Allergen information must also be provided for foods sold non-prepacked or prepacked for direct sale.

The FLR 1996 will be revoked and replaced by new regulations in support of EU FIC. The Department for Environment Food & Rural Affairs consulted on the new Food Information Regulations 2013 (FIR 2013) for England earlier this year.

The new look ingredients list

There will no longer be an allergen warning box saying, for example, “Contains: peanut”. Instead, “peanut” will appear in (for example) bold in the ingredients list (the EU FIC requires the allergen to be emphasised “through a typeset that clearly distinguishes it from the rest of the list of ingredients”). The idea is that an allergic shopper will be able to scan the ingredients list quickly and see, at a glance, whether an allergen is included.

The British Retail Consortium has advised that, in place of the current allergy warning boxes, companies should use the following wording:

Allergy Advice

For allergens, [including cereals containing gluten,] see ingredients in bold*.

(* the reference to “bold” will be replaced with the highlighting option chosen by each company.)

“May contain” wording will still be permitted.

Goods baked in-store, deli counters, restaurants etc

At present, the allergen labelling requirements in the FLR 1996 apply to prepacked food and alcoholic drinks. The draft FIR 2013 (regulation 5) extends the obligation to declare the presence of allergens to food that is:

  • Not prepacked.
  • Packed on the operator’s premises at the consumer’s request.
  • Prepacked for direct sale.

The draft FIR 2013 also spell out that failure to comply with the extended allergen labelling rules is a criminal offence.

So far, so good. However, the draft regulations allow the food business operator to provide the allergen information “in any manner that they choose, including … orally” (regulation 5(1) ). This is subject to the caveat that, if the allergen information is going to be provided orally, the food business operator must alert customers to this either:

  • On a label attached to the food.
  • On a notice, menu, ticket or label that is readily discernible by an intending purchaser at the place where they choose that food.

(regulation 5(4).)

So, if you go to a restaurant, the menu might say something like “Some of our dishes may contain nuts – please ask your waiter for allergen information”. This is what allergic people do in practice at present (see advice from the Food Standards Agency and Anaphylaxis Campaign on eating out). The draft FIR 2013 do not address “may contain” labels, so it would still be open to the restaurant to say “the recipe is nut free, however we cannot vouch that the ingredients are 100% nut free”.

The new allergen obligation does not apply where the food is offered for sale “by means of distance communication”. I read this to mean that if, for example, you ordered a take away over the phone (and paid for your order during the phone call), then there would be no obligation on the take away to provide allergen information.

So, although the FIR 2013 are a welcome step in the right direction, it remains to be seen how much they change in practice, particularly given they do not address the bane of “may contain” wording.

Update (30 August 2013)

The Food Standards Agency has published new guidance on the changes coming into force in December 2014: Advice on food allergen labelling –  How to buy food safely when you have a food allergy or intolerance.

Update (10 September 2013)

The Food Allergy Training Consultancy is hosting an event on 22 October 2013 on the new food allergen labelling laws: see “New Food Allergen Information Regulations – Is Your ‘Food Service Business’ Ready?” flyer.

Sources:

11 comments

  1. Fantastic post there Louise.

    We too have noticed that more small manufacturers have been enquiring about food packaging labels (presumably to comply with the tightening of the law). These are mainly printed up with allergy information and disclaimers.

    Being inquisitive, I ran a quick search and it brought up your post, which covered the topic really well.

    I too feel that hiding behind the ‘may’ blanket isn’t really the best way, however it covers manufacturers from potential legal action – which from a small company’s perspective, when times are as difficult as they are, is understandable.

    Lets hope that the system manages to find a balance between protecting the consumer and not causing the smaller business manufacturer undue red tape.

  2. Really useful information. I am a self-employed cake baker & decorator with an acute awareness of allergy and intolerance issues because of personal & family experiences.

    I was aware changes were afoot but not the specifics and now know that I will be required to provide allegen info to my customers.

    Thank you.

    Gill

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