Changes to food safety labelling in England

Recent fatalities involving allergens prompted the UK government to seek views on amendments and clarifications to the requirements for foods pre-packed on site for direct sale to consumers (PPDS foods). New, more prescriptive requirements will be imposed on businesses providing PPDS foods, which come closer to the requirements for pre-packed foods.

Increased societal and media awareness of the complex allergen issue has resulted in greater regulatory scrutiny, with enforcement action on the rise against food business operators deemed to be non-compliant. The regulatory changes being introduced in England will bring with them increased obligations for food businesses, with those failing to meet those obligations risking prosecution and significant fines and reputational damage that this can attract.

Separate equivalent legislation following the UK consultation is planned for Scotland, Wales and Northern Ireland.

Background

The legislative framework governing the provision of food allergen information is largely set by the Food Information to Consumers Regulation (EU 1169/2011) (FIC), which continues to have effect in UK law following the UK's departure from the EU and the current transition period. FIC requires that food which is prepacked - for example, a ready meal sold in a supermarket – carry mandatory information including an ingredients list, with details of the 14 prescribed allergens present emphasised in that list (the allergenic information).

Food information requirements currently differ for non-prepacked food. Non-prepacked food includes food such as loose fruit and vegetables; food packed on the sales premises at the consumer's request; and food pre-packed for direct sale (PPDS).

FIC has allowed EU member states to distinguish between prepacked foods and non-prepacked foods in how mandatory allergen information is provided to consumers. In the UK, the 2014 Food Information Regulations (FIR 2014) permits a food business to provide allergen information for PPDS foods "by any means the operator chooses including ... orally". Where the business chooses to do so orally, the fact that allergen information can be ascertained in this way needs to be made clear to customers by way of a label, notice or menu.

January 2019 consultation

In January 2019, following a number of fatalities involving food allergens, the UK government consulted on possible amendments and clarifications to the requirements for PPDS foods. The consultation was carried out by the Department for Environment, Food and Rural Affairs (Defra) on behalf of the Food Standards Agency (FSA) in England, Wales and Northern Ireland, Food Standards Scotland (FSS) and the Department for Health and Social Care (DHSC).

The consultation proposed four policy options, one non-legislative and three legislative. They were:

• promoting best practice, with no change in law;
• mandating 'ask the staff' labels on packaging, with staff required to provide information orally and in writing if asked;
• mandating allergen labelling; or
• mandating full ingredient and allergen labelling.

The consultation concluded that legislative change was necessary. In England, that change will be implemented by the 2019 Food Information (Amendment) (England) Regulations (FIR 2019), which will come into force on 1 October 2021. Changes will also be made in due course in parallel regulations for Northern Ireland, Scotland and Wales.

What's changing?

FIR 2019 will require the packaging or labels of PPDS foods sold in England to display the following information clearly:

• name of the food;
• full ingredients list; with
• allergenic ingredients emphasised – for example, in bold, italics or a different colour.

The requirements in respect of other non-prepacked foods are unaffected by the changes.

Consultation on technical guidance

Earlier this year the FSA consulted on proposed amendments to its existing technical guidance on food allergen labelling, and information requirements in order to assist food businesses in bringing their procedures into compliance with the changes required by FIR 2019. Following this, updated guidance (the FSA guidance) has been published.

The FSA guidance seeks to provide granular clarity on whether a food will be considered to be PPDS food. PPDS food is food that is packed before being offered for sale by the same food business to the final consumer on:

• the same site (which would include a building complex, such as a shopping centre or airport terminal in which the same food business operates from more than one unit within the building complex) or
• the same premises; or
• if the food is offered for sale from moveable and/or temporary premises and the food is offered for sale by the same food business which packed it.

The FSA guidance identifies three essential criteria for food to be considered PPDS:

• is the food presented to the consumer in its packaging (completely or partially enclosed and cannot be altered without opening or changing the packaging)?
• is the food is packaged before the consumer selects or orders it?
• is the food packaged at the same site or premises it is sold?

All three must be met in each case for food to be PPDS. 

Food is considered prepacked when it is put into packaging before being offered for sale and:

• is either fully or partly enclosed by the packaging; and
• cannot be altered without opening or changing the packaging; and
• is ready for sale to the final consumer

Examples of PPDS foods include sandwiches placed into packaging by the food business and sold from the same premises; a café giving away packaged samples of a new range of cakes they have made on the same premises; boxed salads packaged by a supermarket on the premises and sold from the same premises and food packed on the premises by the same food business in anticipation of an order, before being offered for sale which can include food the consumer self selects from a chiller cabinet or has to obtain from a member of staff.

However, food placed into packaging after a consumer orders it, for example a freshly prepared sandwich or burger that is made and wrapped after taking an order, is not PPDS.  Although these items are packed, they are not packed before being offered for sale and therefore cannot be prepacked for direct sale. The same rules apply to these foods as apply to other forms of non-prepacked foods such as meals served in a restaurant.

Nor is food which does not have packaging or it is packaged in a way that the food can be altered without opening or changing the packaging, for example a burger served on a cardboard tray.

In preparation for the changing obligations, food businesses including retailers, caterers, restaurants, fast food premises and the licensed trade should evaluate how their foods will be classified and update their Hazard Analysis and Critical Control Point and other food safety and labelling systems to ensure that they are complying with FIC and FIR 2019 for foods sold to consumers.

Additional research by Simon Tingle of Pinsent Masons, the law firm behind Out-Law.