Coronavirus: distance selling for UK food and hospitality businesses

While many organisations will be familiar with the rules around distance selling of foods, others may be doing this for the first time and the rules may be new to them.

Delivering food during UK 'lockdown' measures to meet increased customer demand for deliveries would seem a commercially sensible choice for food business operators (FBOs) forced to close their premises to the public, or experiencing a downturn in trade. However, failure to provide the required food information and, more importantly, allergenic information can have tragic consequences, and remains an area of active enforcement by regulators.

The provision of proper information will also boost consumer confidence, which may allow the takeaway business model to have greater sustainability even beyond the current crisis.

Distance selling is the selling and buying of goods – in this context, food products – without direct face to face contact. It includes selling food online, whether directly through a company website or indirectly through an online takeaway aggregator such as Just-Eat or Deliveroo, or over the telephone. It also covers deliveries for collection at the business premises, although this may be less practicable in light of UK 'lockdown' measures.

What information about the food is required when distance selling foods depends on whether those foods are pre-packed, such as a pint of milk, or non-prepacked, such as a lasagne, pizza or burger ready for immediate consumption.

Distance sales of pre-packed foods

Under the Food Information to Consumers Regulation (EU 1169/2011), FBOs distance selling prepacked foods need to make the same level of food information available to consumers when distance selling - for example on their website or in their catalogue - as they would in a retail environment, with the exception of a 'use by' date. This is referred to as 'mandatory information'.

Mandatory information includes the following:

• food name;
• ingredients;
• allergenic information;
• quantity of food and ingredients;
• any special storage conditions;
• conditions of use;
• the name and address of the FBO;
• country of origin or place of provenance;
• instructions for use;
• nutritional declaration; and
• alcoholic strength of beverages above 1.2% ABV.

When distance selling, this information must be made available before the purchase is concluded and should appear on material supporting the same through clearly identified and appropriate means. It must be done without cost to the consumer - for example, free telephone information lines. Information must also be made available at the moment of delivery, so that it is available to the consumer when the purchase is concluded and at the point of delivery/

Where multiple items are contained within a 'set' or 'box', the information should be provided on materials that support the sale and at the moment of delivery.

Distance sales of non pre-packed foods

FBOs distance selling non pre-packed food need not provide all the information above. However, there is a strict requirement to ensure that allergenic information is available to the consumer both before the purchase is concluded and at the point of delivery.

The law is less prescriptive about the way in which the allergenic information needs to be communicated compared to pre-packed foods. Current guidance states that the allergen information should be held in written form by the FBO and available in written form at some point between the consumer placing the order and them taking delivery of it. The information should be free and readily accessible, and should be provided without any supplementary costs being charged to the customer.

Tips from guidance under consultation

The government is consulting on new guidance broadly centred on the changing requirements for foods pre-packed on site for direct sale to consumers (PPDS foods). This updated guidance also contains some useful cues which FBOs should be aware of when distance selling non pre-packed foods.

The guidance suggests ways of providing allergen information at both the time of the order and the time of delivery.

Ways of providing allergen information at the time of order may include:

• asking customers whether they have allergen requirements before the order is taken online or over the phone;
• signposting the customer to where the information can be obtained in writing – for example, an online menu; or
• staff providing the allergen information orally by telephone while referring to the written information.

Ways of providing written allergen information at the time of delivery may include:

• placing stickers on food containers to clearly identify food and allergenic ingredients used in that food – for example, "Contains: wheat";
• providing a menu with the order which allows the customer to clearly identify allergenic ingredients in the food, along with clear names, or other appropriate cross-references on food containers; or
• the member of staff from the business delivering the food presenting the customer with written allergen information, together with a means to clearly link the written information to each food item.

Simon Tingle is a food safety expert at Pinsent Masons, the law firm behind Out-Law.