Food Safety and Labelling - The consequences of failure

21 Nov 2018

Food safety and the identification of allergens have recently been brought into sharp focus following the deaths of Natasha Ednan-Laperouse and Megan Lee. The resulting inquest and the prosecutions for gross negligence manslaughter after Miss Lee’s death have been the catalyst for the Prime Minister and the Secretary of State for Environment (Food & Rural Affairs) to suggest changes to food safety regulations. This could have huge implications for the food retail sector and obligations to provide allergy information.

Natasha Ednan-Laperouse was allergic to sesame and subsequently died after consuming an artichoke and olive tapenade baguette containing sesame, which she had purchased from a Pret a Manger outlet (“Pret”). Natasha and her father had checked the baguette packaging for allergens and her father says they had been reassured by the labelling that there were none identified.

Megan Lee had been allergic to peanuts and died on 1 January 2017 after consuming an Indian takeaway meal which had contained peanut protein, purchased from the Royal Spice Takeaway. The online menu had not included a list of ingredients. In addition, Miss Lee’s friend had written “prawns, nuts” into the notes section of the on-line ordering form.

Both cases serve to highlight potential deficiencies in the effectiveness of the Food Information Regulations 2014 and the consequences for customers and the food retailer in getting things wrong.

The Food Information Regulations came into force in December 2014, permitting local authorities the power to enforce regulation on the provision of food information communicated to customers. The legislation requires food businesses to list any of fourteen identified allergenic ingredients, including sesame, on all pre-packaged foods. However, number five of the regulations provides exceptions for food items which are:

  1. Not pre-packaged;
  2. Packed on the sales premises at the customer’s request
  3. Pre-packaged for direct sale.

If any of the above applies, the food business operator does not have to list any allergenic ingredients on the food product itself. Alternatively, it can provide allergen information by any means chosen, including orally. This is on condition that the operator indicates by way of a label attached to the food, notice or menu that details of that substance or product can be obtained if required.

In Pret’s case, the company says the baguette was assembled in an adjacent on-site kitchen and was then packed and displayed for sale. Therefore, the food was pre-packed for direct sale and fell within regulation five, meaning there was no requirement to list the ingredients on the packaging itself. In order to comply with the legislation, Pret relied on stickers placed on the food display units, highlighting that allergy information could be provided by staff or obtained from Pret’s website.

In the case of The Royal Spice Takeaway (“Royal Spice”), Harum Rashid the takeaway manager and Mohammad Abdul Kuddus the owner were charged and convicted of gross negligence manslaughter. They were sentenced to three and two years prison respectively. Kuddus also pleaded guilty to a failure to discharge a general duty under Section three of the Health & Safety at Work etc. Act 1974, which indicates failure by an employer to ensure reasonable practice towards the health and safety of non-employees (customers). In addition, he has also pleaded guilty for a failure to exercise procedures in convention of food safety regulations, entering a guilty plea to the same offences on behalf of Royal Spice. Rashid faces similar charges.

Coroner, Dr Sean Cummings accepted in the inquest into the death of Natasha, that Pret operated within the 2014 Regulations. However, he stated “I was left with the impression that Pret has not addressed the fact that monitoring food allergy in a business selling more than 2,000,000 items per year was something to be taken very seriously indeed”. In response Pret has claimed that it will trial full ingredient labelling on product packaging. Dr Cummings has also voiced that he will be writing to Michael Gove, the Environment Secretary, expressing support for food regulatory change.

There are wider duties on food retailers as highlighted by the Royal Spice prosecution. A food retailer may be compliant with food safety and labelling regulations, but there remains a general responsibility under the Health and Safety at Work Act to ensure that customers are not exposed to risks to their health and safety arising out of the food retailing operation. In situations where failures lead to a death, this can result in a charge of manslaughter or seven figure fines.

A tightening of The Food Information Regulations 2014 looks very likely, in view of clear government support and the risks highlighted by the tragic death of Natasha Ednan- Laperouse. The risks to consumers from a failure to comply are now well publicised and food retailers can expect harsh penalties where failure to comply results in serious illness or death. Local Authorities will, no doubt, make conscious efforts to strictly enforce food safety regulation as far as limited resources will allow. The sentencing guidelines for health and safety and food safety offences have seen a dramatic increase in fines for breaches large and small and in some cases a custodial sentence for owners. The consequences of failure are now very high indeed.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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