For those who have heard of the cases of Natasha Ednan-Laperouse and Owen Carey, you will know the potential tragedy that can be caused by food suppliers who do not make consumers clearly aware of allergens in their products. As a result of these devastating stories, the law regulating food suppliers in terms of allergen information has been tightened in the UK. However, the Food Information (Scotland) Amendment Regulations 2021 only applies to food that is pre-packaged and prepared prior to the consumer selecting the product. So, where does that leave suppliers who do not serve pre-packaged food, such as cafes, restaurants and takeaways?
The Supplier's Obligations:
Put simply, all organisations providing products to consumers owe a common law duty to consumers to take reasonable care in ensuring their products are safe for consumption. In the food industry, it can be argued that taking reasonable care would include ensuring that any allergens mentioned by the consumer are not contained in the product served to them. For example, staff in a restaurant must take care when they are informed of a consumer's allergy to ensure that the dish served does not risk an allergic reaction in the consumer.
The level of duty enforced on the organisation will depend on the information provided to them by the consumer. If the consumer has mentioned their allergies and potential risks, they can be said to have contracted with the supplier of the product to provide a good that is fit for their purposes under section 10 of the Consumer Rights Act 2015. Therefore, the product should not contain the allergens mentioned. Further, consumer rights are protected by section 11 of the 2015 Act, which provides that goods should match their description in a contract for their supply. Therefore, if the ingredients in a dish are listed on the menu, the consumer is entitled to a dish that contains only the ingredients mentioned. Further, under FSA guidance, restaurants and cafes must provide allergen information either via their menu or verbally. This means that if a customer requests allergen information, the server must be able to provide it.
How you can mitigate risks of allergens:
For suppliers in the food and drink industry to comply with these regulations, it is key to ensure the allergen information and ingredients in products served are clearly identifiable. Our top tips for those who serve food to consumers is to:
- Provide a clear list of ingredients for each product that identifies the 14 most common allergens in bold;
- Ask consumers if they have any allergies they should be aware of when preparing food; and
- Strictly follow any advice or warnings given by consumers in terms of their allergies.
At the end of the day, a consumer in a restaurant cannot claim that a supplier caused their allergic reaction if they neglected to mention their sensitivity or allergy to their server, who made clear the ingredients in the dish. However, given the potential tragedy that can be caused by lack of clarity surrounding allergens, suppliers should ensure they are clear, careful, and conscious of potential allergens in the food and drink products they serve.
For further information on mitigating risks in terms of health & safety obligations in the food and drink industry, please see here.