UK: FSA guide on allergy labelling

The Food Standards Agency (FSA) has issued guidance to food producers on "best practice" for managing food allergens, with particular reference to avoiding cross-contamination and using appropriate advisory labelling (e.g. "may contain" labelling).

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Unlike the situation for deliberately added ingredients, there are currently no statutory controls governing labelling for the possible low-level presence of allergens due to cross-contamination of foods along the supply chain. One of the reasons for this guidance was consumer concern over the perceived overuse of advisory labelling warnings. It is intended as a guide to food producers on how to manage food allergens, food production and the assessment of whether or not advisory labelling is appropriate.

Guidelines such as these are not legally binding but do have evidential value. They assist in the interpretation of legislation and the reasonable standard of duty of care provided as, although they are not legally binding, courts have regard to FSA standards in interpreting legislation. Therefore compliance with this Guidance will assist in showing that a food producer has met the reasonable standard of duty of care and due diligence required.

The guidance states that advisory labelling should only be used when, following a thorough risk assessment, there is a demonstrable and significant risk of allergen cross-contamination. The document therefore sets out a qualitative approach to allergen management and risk assessment, but the assessment process is still very much in the hands of the food producer.

The guidance also provides a useful breakdown of measures relating to "allergen free" claims. A positive claim (e.g. gluten free) is often regarding by consumers as meaning a guarantee of a complete absence; whereas usually this only means that samples of the food were shown to be below the analytical limit of detection for that allergen on one or more occasion. The FSA confirm that appropriate limits for a claim that a product is free from a particular allergen can be set. It is also stated that if manufacturers produce lists of foods free from particular allergens, these should be regularly reviewed and updated.

An example of the potential pitfalls of "allergen free" labelling may be found earlier this year in relation to the nutritional information providing by McDonalds on their french fries, which stated they were dairy, wheat and gluten free. This was amended, to much public outcry and threatened lawsuits, and then reversed after further testing. Food producers need to be aware that as soon as a positive assertion is made it is their responsibility to substantiate this claim, check that food complies with it and keep this under regular review; in particular in respect of changing suppliers, processes and testing methods.

The provision of an incorrect claim would open a food producer up to potential food safety and consumer protection litigation as well as potential damage to brand reputation. The making of an allergen free claim is therefore a commercial decision for each food producer based on an appropriately documented quality system. To this end, the guidance on allergen management and consumer information will be a useful practice to follow to illustrate best practice in due diligence.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

The original publication date for this article was 13/07/2006.