Ashbury look at the evolution of Natasha’s Law and what challenges exist when applying the new legislation.
The number of allergy sufferers is on the rise and in response to the growing demand, we have this year seen for the first time the food industry meeting to discuss allergens at the FSA Allergy Symposium; we have also seen the introduction of new legislation that aims to protect these consumers, specifically the ‘Food labelling requirements for prepacked food for direct sale (PPDS)’ rule which was implemented on 1 October 2020 with a compliance date of 1 October 2021.
An evolution of allergen labelling on prepacked foods…
Mandatory allergen labelling on prepacked food was one of the main features of revised labelling law when the EU’s Food Information to Consumer Regulations (FIR) came into effect. What then of foods that are prepacked for direct sale to a customer? This was left very much up to individual Member States to set out their own national measures. In the UK this was done by allowing a business the option of providing written or oral allergen information, however, nuances exist, for example the approach taken in Ireland allowed only the indication of allergens in writing.
In the time since the establishment of the FIR, it was found that confusion between prepacked food (purchased from suppliers) and food packed on the premises for direct sale was leading consumers to misinterpret labels and not ask about allergens. For example, a consumer familiar with a prepacked tuna and mayo sandwich which indicates the presence of some allergens by highlighting them in the ingredient list on the label will not face the same manner of providing information on an identical sandwich, if it were prepacked for direct sale; the information may only be available orally. This may create a disparity in the expectations that consumers have for the provision of allergen information, they may assume no written warnings mean no presence and thus the risk of allergen exposure could increase.
The Food Information (Amendment) (England) Regulations 2019 – so called Natasha’s Law, will come into force in October 2021 in England, Wales and NI, allowing a transition period that will enable all businesses, big and small, to make the necessary changes.
This means all prepacked for direct sale foods will have to clearly display the following information on the packaging:
- Name of the food
- Full ingredients list and allergenic ingredients emphasised (for example in bold, italics or a different colour).
The intention is to label allergens in food prepacked for direct sale in the same fashion as prepacked food to further protect consumers and avoid tragic deaths, such as that of Natasha Ednan-Laperouse. No allergen charts or other alternatives may be used, however, precautionary labelling requirements such as “may contain” or “not suitable for” are acceptable.
How can you prepare?
In June 2020 the Food Standards Agency modified its existing technical guidance document on food allergen labelling and information requirements. One of the issues the guidance gives details on is what prepacked for direct sale means; it does this because of the absence of a legal definition in either EU or domestic UK legislation. The FSA’s guidance also includes a simple decision tree which might prove useful for businesses unfamiliar with this term. Food ‘Prepacked for direct sale’ is:
“Food packed before being offered for sale by the same food business to the final consumer.
- On the same premises; or
- On the same site; or
- On other premises if the food is offered for sale from a moveable and/or temporary premises (such as marquees, market stalls, mobile sales vehicles) and the food is for sale by the same food business who packed it.”
So, what if you have one kitchen and multiple sites? The definition excludes one preparation site serving other sites unless they fall within that list of moveable or temporary premises (at least for now).
In terms of legislation, you should design your labels in accordance with regulation 1169/2011 FIR which outlines the details regarding where and how this information should be presented on your packaging.
Some ambiguity remains until legislation is further developed
There is a difference in the legal status of the FSA guidance and the legislation itself so, some ambiguity remains until the matter is resolved by a further revision of the legislation to incorporate a definition or an interpretation by the courts that can be used.
In addition, the guidance does not cover loose items for sale, meals in sit-in restaurants or cafés, items prepared freshly and then wrapped or packed (such as a build your own sandwich) or items prepared but kept hot or cold on display and ready for sale. So, while the change aims to give consistency of labelling allergen information between prepacked and prepacked for direct sale, it does not address other means of selling food-to-go products. This oversight means a tuna and mayo sandwich packaged in front of the consumer verses prepacked or prepacked for direct sale may be labelled in three different ways and presents a comparable risk to the end consumer should they suffer from allergies. Some businesses are addressing this by providing labelling in all circumstances.
This all raises several questions as to the practicality of the law; how will smaller premises ensure labelling on prepacked items is up to date and present? What will happen during busy periods when ingredients are swapped in and out as required to meet demand? Are businesses and their employees sufficiently trained and aware of allergens? How will cross-contamination be controlled and informed – on the label as well? What about other allergenic foods not mandatory to be declared on non-prepacked items? And most of all how will this engender confidence in labelling or stop confusion in the mind of consumers?
With so many scenarios, it is challenging to provide a ‘one size fits all’ answer on how to best prepare. We expect to see further refinement leading up to October 2021, in the meantime work towards the current guidance provided, taking into consideration how to incorporate this into your food safety plans.
Consumers still need to ask
While labelling regulation should aid consumers in their decision making, there is of course the practical consideration of looking after yourself and making sure a product is safe for you to eat – if you know you have an allergy. Ask.
Ashbury has completed a number of projects for high street foodservice operators and retailers in relation to applying Natasha’s law. For advice on how to apply the new rules to your scenario please do get in touch.