Food Law Matters

A commentary on current food law issues  

by Dr Andy Bowles

 27.4.16

Food Allergen Awareness

This week is allergy awareness week and so this seems to be a suitable topic to launch our new blog. Whilst there are hundreds of foods that that may provoke an allergic response in susceptible individuals ranging from kiwi fruit to raspberries, the law currently recognises 14 allergens for which there is sufficient scientific evidence to require food businesses to declare their presence as an ingredient in the food they sell.

A food allergen is a substance, normally a protein component of the food, which causes the immune system of the allergy sufferer to react to its presence. Previous studies, currently being replicated, have demonstrated that some food allergens can provoke a greater immune response than others and that the intensity of the allergic reaction can be, although not always, dose dependant.

Reactions to the presence of allergens in food can be mild, presenting minor symptoms such as tingling lips, or major ones resulting in anaphylactic shock and in rare cases, death. The nature and intensity of the symptoms can be influenced by a number of factors including the health of the allergy sufferer and in particular whether they are asthmatic; the potency of the allergen, for example peanuts have been shown to be more likely to cause anaphylaxis in patients than some other allergens such as soya; the dose of the allergen although this is not always the case and rare deaths due to exposure of small amounts of allergen have been reported and; whether the allergy sufferer has recently undertaken exercise or consumed alcohol. It should be stressed that these are risk factors and may contribute to allergic reactions in isolation or in combination.

Anaphylaxis

I have been present when a person went into anaphylactic shock and the most alarming part of this experience was the speed of onset of symptoms (in this case vomiting, reddening of the face, hives on arms and upper body, cold like symptoms with mucous generation and difficulty breathing) and the feeling of helplessness as the person gasped for air. This can happen to anyone at any time and so there are some basic rules:

• If the person has a known allergy and carries an Epi-pen, administer one dose immediately into their upper thigh. Don’t bother removing clothing, just remove the safety cap, plunge the pen into the thigh until you here a “click” and wait ten seconds.
• Dial 999 and state “Anaphylaxis” – this will prioritise the ambulance/paramedic response
• Calm the person but do not get them to stand up.
• If symptoms do not subside within 15 minutes and there has been no response from the emergency services, administer a second Epi-pen.

If you are an allergy sufferer and carry an Epi-pen it would be a good idea to wear an emergency pendant or bracelet to let people know about your condition and where to find the Epi pen should you suffer an anaphylactic episode in a public place.

If you find a stranger having an anaphylactic episode, you should firstly ask them if they carry an Epi pen and whether you can administer it. If they are unable to answer, check their personal belongings and administer the pen without delay. What about if they die or suffer a reaction to the Epi pen? Can you be held liable? The simple fact is that no medical intervention is without risk especially when administered by a person without medical qualifications. As such your actions could make matters worse. However, in law, you will be protected from any civil or criminal proceedings if you act in a reasonable way. In England, under current law, if the patient is a stranger to you then you do not have to intervene at all and would not be accountable, in law, if they were to die due to your inaction. This might be lawful, but would not be the right thing to do.

What should businesses do?

The first principle of allergen control is avoidance. You should check through your ingredients to see if you are using any of the 14 legal allergens and if so whether it would be better to stop using them. For example is it really necessary to use groundnut (peanut) oil when other types of oil are available?

The next step is to provide adequate information to the consumer regarding the presence of allergens. Pre-packed foods should clearly identify which of the 14 allergens are used as ingredients in the food. The British Retail Consortium (BRC) have provided some excellent guidance on what this looks like in practice.

Food businesses that supply food loose, such as restaurants, take-aways and bars, must also provide customers with accurate information regarding the presence of any of the 14 allergens used as ingredients in their food. They can do this by printing details of allergenic ingredients on their menus or other printed matter. Alternatively they can provide the information verbally to their customers on request as long as they display a sign informing their customers that they may ask a member of staff for such information.

It is a good idea to ensure that all of your staff are adequately trained in the identification and control of food allergens. The Food Standards Agency online training tool may be helpful to you.

Cross contamination

There are two likely sources of undeclared allergens in food: ingredients of the food and from cross contamination from other foods handled in the environment. There are two separate legal duties placed on food businesses: the duty to declare any of the 14 allergens used as ingredients in food and; the duty to prevent the contamination of food from allergens in the environment.

One of the most common excuses that I come across from businesses who fail to provide adequate allergen controls is that “it’s too difficult” or ”if a tiny amount of allergen can kill there’s nothing I can do to prevent that”.

I suspect that the reason why some businesses think that allergen control is too difficult is that they merge the two issues into one insurmountable problem rather than breaking the task of allergen management into small easy to implement chunks. In order to provide accurate information regarding the allergenic ingredients in your food you simply need to ensure that your suppliers provide adequate allergen information and that you know which ingredients you are using in a given dish. It really isn’t rocket science! Put up a sign inviting your customers to ask about the presence of food allergens and make sure your staff are adequately briefed on how to respond to such a query. Produce reference information for your staff to consult if unsure. The Food Standards Agency have produced some easy guidance for you to follow to ensure that this is properly managed.

In terms of cross contamination, remember that although deaths do occur from exposure to low levels of allergens, these are very rare. You are more likely to cause anaphylaxis in a customer through the presence of an undeclared allergen than you are through cross contamination. That said, there are still some basic rules to follow.

What about “May Contain” statements?

These should only be provided following a detailed risk assessment which identifies a significant residual risk of the presence of an allergen after appropriate control measures to prevent contamination of the food by the allergen have been implemented.

I am often asked by manufacturers whether it would be simpler to put a “may contain nuts” statement on all of their labels to avoid any potential litigation should low level contamination occur. This is not a good idea for two main reasons. Firstly, the statement, if unsubstantiated, may be considered to be misleading contrary to Article 7 of the Food Information for Consumers Regulation. Secondly, the statement alone will not protect the negligent business from legal action. There is a duty for food businesses to only place food on the market that is safe and to take positive steps to prevent the contamination of food. Merely placing a warning on a food without putting in place adequate controls will be insufficient to avoid liability.

Dr Andy Bowles is currently a specialist food law solicitor and Director for ABC Food Law.

Andy was formerly a Quality Assurance Manager for Dairy Crest Dairies and Acting Head of Environmental Health at the London Borough of Enfield. He was also a lecturer at Middlesex University where he taught food law at both undergraduate and post graduate levels.

Andy is qualified with a BSc (Hons) Environmental Health, BSc (Hons) Life Sciences, MSc Microbiology, post graduate diplomas in Health and Safety and Acoustics, Graduate Diploma in Law and PhD in food law.