On 25 January 2019, DEFRA launched a consultation to elicit stakeholder feedback on potential changes to the laws governing the allergen labelling of food and, specifically, the regulatory distinction between pre-packed and non-prepacked food.

At present, the Food Information to Consumers Regulation (FIC) imposes onerous regulatory obligations on food businesses to provide accurate and comprehensive labelling information on pre-packed foods. For instance, foods must be labelled with full ingredients and, if any of the 14 allergens listed in Annex II of the FIC (e.g. nuts, dairy) are present, these must be explicitly stated on the product label. However, the law imposes less prescriptive standards for non-prepacked foods and permits food businesses to take alternative practical measures to communicate allergen information. The specific focus of the DEFRA consultation relates to a type of non-prepacked food called "food pre-packed for direct sale" (PPDS). However, the distinction between pre-packed and PPDS foods is not necessarily clear. Indeed, recent cases demonstrate that understanding in this area is low, with consumers legitimately assuming that packaged food not labelled with allergens simply contains no allergens.

In order to combat this issue, DEFRA has outlined proposals for reform of the PPDS system. The purpose of this legal update is therefore to examine each proposal and consider the question: Does the law proportionately balance the interests of food businesses against the welfare of consumers?

Background to the consultation

The impetus for the consultation was a coroner's inquest which followed several high-profile allergy-related fatalities in the UK. The revelation that the law obliquely discriminates between packaged foods, with such profound consequences for consumers, has ignited debate at a parliamentary level; compelling legislators to question whether the current framework is fit for purpose.

A second driving factor is the growing prevalence of food allergies, coupled with the fact that more and more people are eating out. Indeed, data released in 2017 by NHS England shows that the number of people being admitted to hospital after suffering a food allergy is rising by more than 10% each year. Whilse this cannot be solely attributed to failures in PPDS food labelling _ or in fact any one cause _ the UK Government's desire to effect meaningful change in this area is evident.

Setting the regulatory landscape

Food allergen labelling is regulated at both an EU and UK level, as well as being a devolved power of the Scottish Parliament. Since 2014, the overarching legislative framework for the provision of allergen information has been the FIC. Indeed, the presumption is that the FIC will be transposed into UK law at the point of Brexit. In the longer-term, however, the consultation alludes to an "opportunity to review all food labelling" post-Brexit.

The FIC notably introduced a duty on Food Business Operators (FBOs) to ensure that all mandatory food allergen information is accurate, available and easily accessible to the consumer. In addition, the FIC allows for the implementation of national measures to govern how information is made available for non-prepacked foods. The UK utilised this discretion by applying a flexible and non-prescriptive approach to the labelling of PPDS foods by FBOs. Specifically, under UK law, allergen information for PPDS foods should be made available by any means a business chooses; including by attaching a "readily discernible" label or notice indicating that a member of staff can be consulted.

Each country in the UK has its own parallel implementing regulations, establishing enforcement provisions that are then administered by food enforcement officers within local authorities e.g. the Food Information (Scotland) Regulations 2014. It is worth noting that although food safety and labelling is a devolved competence in Scotland, the consensus is that regulatory consistency is necessary for securing post-Brexit trade deals. The fact that the consultation is the product of collaboration between DEFRA, Food Standards Scotland, the FSA and the Department for Health and Social Care is, therefore, indicative of the desire for a UK-wide approach to food standards.

The scope of PPDS

The FIC does not provide a specific definition of PPDS. As such, the Food Standards Agency's (FSAs) technical guidance on allergen labelling is instead used throughout the consultation paper. It defines PPDS foods as "foods that have been packed on the same premises from which they are being sold". These foods are treated in the same way as non-prepacked foods in FIC's labelling provisions, so they are not required to list allergen information on labels. This subtle regulatory distinction has a significant impact on the labelling obligations for FBOs and, consequently, the level of information available to consumers.

DEFRA's proposals

DEFRA is seeking views on a range of policies as a means of making food allergen information clearer for consumers. The first proposal presents a broad regulatory ambition to achieve enhanced collaboration between industry and regulators, with a goal towards shaping best practices. The remaining three proposals are more practical and involve the use of increasingly more prescriptive (and onerous) regulatory measures.

"Ask the staff" labels

This proposal mirrors the current law in that a uniform label would be affixed to packaging, advising those with allergies to speak to a member of staff for information. However, on request, staff would additionally have to provide a written list of any of the 14 allergens, or a full list of ingredients, before food is purchased. In a similar vein to the first proposal, the intention here is to build an environment where consumers are encouraged to communicate with staff about allergy requirements when choosing PPDS foods.

This 'soft law' approach is likely to be preferable to PPDS businesses that want to make allergen information available in a way that aligns with their business model. In addition, the cost and administrative burden (particularly for small and micro businesses) is not likely to be high. However, this measure places a heavy burden on consumers to proactively and consistently engage staff. DEFRA also acknowledges that, in the absence of binding regulatory measures, this may not be persuasive enough to provoke the systemic change being called for.

Allergen-only labelling

The third proposal would require PPDS foods to have on their packaging (i) the name of the food and (ii) whether any of the 14 allergenic ingredients are intentionally present; without requiring disclosure of a full ingredient list.

On the other hand, people who are allergic to substances that are not on the list of 14 allergenic ingredients will not gain any benefit from this proposal. The consultation also points out that this measure does not mitigate the risk of product contamination nor of mislabelling; particularly in busy environments where foods containing different allergens are made simultaneously. An over-reliance on the accuracy of labelling may discourage consumers from engaging in dialogue with staff, leading to an increase in allergy-related incidents.

Full ingredient labelling

The final option that DEFRA proposes is an extension of option 3, requiring PPDS foods to contain a full ingredients list, as well as the name of the food and a list of the 14 allergens. This would align PPDS foods with the requirements for pre-packed foods, allowing for a more consistent and harmonised approach to food labelling. In addition, consumers with food allergies and intolerances beyond those mandatorily defined by FIC may have more trust in the food they are eating given the full delineation of ingredients.

As with the previous proposals there are, however, potential drawbacks. For instance, although staff do not have to be relied upon to provide accurate information directly to consumers, on-site labelling processes are likely to be required, which would involve the substantial training of staff to use accurately. For obvious reasons, this option carries the greatest risk of mislabelling. Also, the additional cost of full allergen and ingredient labelling may reduce consumer choice if businesses feel that they must remove certain foods or limit menu variations (e.g. one-off specials), in order to avoid the costs of extra labelling.

Towards regulatory change _ the impact on industry?

One issue that is openly approached in the consultation is the potential cost of any law reform to FBOs. It is important to acknowledge that the additional administrative, resource and cost burdens associated with DEFRA's proposals are likely to be felt most by small (<49 employees) and micro businesses (<9 employees). Indeed, the consultation's impact assessment estimates re-labelling costs at £10.99 - £1,978.59 per stock keeping unit, depending on the size of the business. This would be a significant (and potentially unsustainable) burden for smaller companies who are not able to pass costs onto customers without risking the loss of business.

In contrast, one issue that is deliberately excluded from the consultation is the presence of Precautionary Allergen Labelling (PAL) on PPDS foods. Even if FBOs implement full ingredient and allergen labelling standards, consumers may still be put at risk if the unintentional presence of food allergens due to cross-contamination is not indicated. Given that the consultation's overarching policy objective is to improve consumer information, it is unclear why an enhanced guarantee of safety is excluded from consideration.

Though the safety of consumers is the primary concern, it should not be the sole concern. It would seem that a delicate balance remains to be struck between protecting the wellbeing of consumers through transparent labelling, and preventing FBOs from carrying a disproportionate regulatory burden. On this basis, it is unclear which of the consultation's proposals will be best placed to deliver this. What is clear is that, going forward, a standardised approach to dealing with allergen information is needed. For this to work, agencies like DEFRA and the FSA will need to continue to work with wholesalers and retailers to establish an industry-wide best practice approach.

The consultation is open to businesses, consumer groups, enforcement authorities and members of the public. We would therefore encourage all stakeholders in the UK food and drink sector to consider responding to the consultation, before the deadline on 29 March 2019. For more information on how to respond please follow these instructions.