Following last week’s inquest into the death of Natasha Ednan-Laperouse, potential changes suggested by both the Prime Minister and the Secretary of State for Environment, Food and Rural Affairs could have huge implications for the food retail sector and the obligations on it to provide allergy information. Further, calls for such change may only increase given the ongoing criminal trial relating to the death of Megan Lee who unknowingly ate a takeaway meal containing peanuts.
Natasha Ednan-Laperouse was allergic to sesame and she tragically died in Nice on 17 July 2016 after consuming an artichoke and olive tapenade baguette, containing sesame, which she had purchased from Pret A Manger (Pret) in Terminal 5, Heathrow. Both Natasha and her father had checked the baguette packaging for allergens and had been reassured that there were no allergens identified.
Megan Lee had been allergic to peanuts and she tragically died on 1 January 2017 after consuming an Indian takeaway meal from Royal Spice Takeaway, Lancashire, which had contained peanut protein. The online menu had not included a list of ingredients. Ms Lee’s friend had written “prawn, nuts” into the notes section of the online ordering form.
These two cases both serve to highlight potential deficiencies in the effectiveness of the Food Information Regulations 2014.
The Food Information Regulations 2014
The Food Information Regulations 2014 came into force on 13 December 2014. These Regulations give authorities the ability to enforce Regulation (EU) No 1169/2011 on the provision of food information to consumers. This EU Regulation requires food business operators to list any of 14 identified allergenic ingredients, including sesame seeds and products thereof, on all pre-packed foods. However, Regulation 5 of the 2014 Regulations provides an exception for food items which are:
1. Not prepacked;
2. Packed on the sales premises at the consumer’s request; or
3. Prepacked for direct sale.
If any of the above apply then the food business operator does not have to list any allergenic ingredients on the food product itself. Instead, it can provide allergen information by any means the operator chooses including orally – provided the operator indicates, by way of a label attached to the food or on a notice, menu, ticket or label, that details of that substance or product can be obtained by asking a member of staff.
In Pret’s case, the company says the baguette was ‘assembled’ in an adjacent onsite kitchen and was then packed and displayed for sale. Hence it was ‘prepacked for direct sale’ and fell within Regulation 5 of the 2014 Regulations meaning there was no requirement to list the ingredients on the packaging itself. Instead, in order to comply with Regulation 5, Pret relied on stickers placed on the food display units which highlighted that allergy information could be provided by staff or obtained from Pret’s website.
In the case of Royal Spice Takeaway, its online menu stated “Think allergy” and “please ask any member of staff” . This approach may also have been sufficient to satisfy the 2014 Regulations – albeit, in that case there are a number of further allegations relating to other food safety regulations.
What this means for you
At the inquest into the death of Natasha, the Coroner, Dr Sean Cummings, appears to have accepted that Pret operated within the 2014 Regulations but said he would be writing to the Secretary of State for Environment, Food and Rural Affairs to consider whether food labelling laws are adequate for large food business operators. In response, Theresa May has called for a review of food labelling laws; Michael Gove has talked about the need for a ‘Natasha’s law’; and Pret has also said it will start trialling full ingredient labelling on product packaging.
The Coroner’s concerns appear to have stemmed from the applicability of Regulation 5 of the 2014 Regulations to large food business operators like Pret – as opposed to small independent businesses (such as a fruit stall). The potential changes recently suggested by both the Prime Minister and the Secretary of State for Environment, Food and Rural Affairs could have huge implications for the food retail sector and the obligations on it to provide allergy information. For example, it is notable that Greggs is said to be urgently reviewing the way it provides ingredient information to its customers.
In terms of the potential for civil claims, compliance with existing regulations will of course be relevant. In the context of a claim under the Consumer Protection Act 1987, a claimant would need to establish that the level of safety is not such as ‘persons are generally entitled to expect’. However, the courts have said that it would be challenging for a claimant to prove that this level of safety is higher than that provided by a regulatory regime (see Wilkes v Depuy International Ltd  and Gee and others v Depuy International Limited ). A change in the regulations would obviously have an impact on the general public’s expectation of safety. The same would arguably apply to a claim in contract where a claimant would need to prove that the food served was not of satisfactory quality.
Further, a negligence claim would entail a detailed analysis of the food operator’s approach to providing allergen information. This includes staff training, the prominence of displays and the extent that previous similar complaints, which might be thought to have provided sufficient warning that the food operator’s present practices are not sufficient, have been addressed. For instance, in Pret’s case the Coroner criticised it on the basis that the stickers dealing with allergy information were difficult to see and because it had failed to adequately deal with and respond to previous similar complaints. Indeed, it has been reported there were six allergic reaction cases in the year before Natasha’s death.
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