In the UK, it is estimated that 1-2% of adults and 5-8% of children have a food allergy. An allergic reaction can be produced by a tiny amount of a food ingredient to which a person is sensitive (for example a single breadcrumb). While you may have kitchen protocols in place to address the risk of cross-contamination, most restaurants cannot guarantee the total absence of allergens in their dishes. The messages given to customers may therefore need to be suitably qualified.
Say a customer with a severe allergy comes into your restaurant. The customer informs a waiter about their allergy and asks which dishes on your menu are safe for them to eat. Does your business have sufficient allergen procedures and policies in place? What is best practice for handling this sort of request? The Food Information Regulations 2014 contain a list of 14 common allergens. For non-prepacked foods, you are required to make available information regarding these allergens by any means you choose, including orally.
This does not necessarily mean providing a complete list of all ingredients and allergens on menus themselves. You do, however, need to use prominent wording on menus and/or clear signposting to explain how customers can obtain this information from staff.
Foods prepacked for direct sale, such as packaged sandwiches and boxed salads which are prepared in onsite kitchens and packed before the customer places an order, are generally treated in the same way as non-prepacked foods. However, in January this year, the Government launched a consultation on amending allergen information for foods prepacked for direct sale. The consultation, which closed on 29 March, puts forward a range of policy options, from a promotion of best practice but no change to the law, to full ingredient and allergen labelling.
One way to make available the information is to provide allergen charts that customers can view both online and within your restaurants. It is critical to ensure that the information is 100% accurate and that your staff have been properly trained on presenting the information and the risks around allergens. Given the information will derive from your suppliers, you must also ensure that your suppliers fully disclose all of the allergens that are or may be present in items supplied.
It is worth noting that while the Government consultation on allergens is directed towards prepacked food, it might follow in future that restaurant menus will be required to detail allergen information as opposed to this being available separately.
A review of your allergen procedures and policies should include (but not be limited to):
1 The prominence, clarity and accuracy of the allergen information on your websites and menus.
2 The customer ordering process and the training / supervision of staff members.
3 Kitchen protocols, audits and addressing the risk of cross-contamination.
4 Record keeping protocols and incident response procedures.
5 Issues in the supply chain – knowledge of products going into your kitchens.
The consequences of failing to comply with the Regulations are severe. First, there is a risk to life in respect of allergen reactions. The recent high-profile media stories in relation to allergen deaths have brought this to the fore. Second, it is a criminal offence for restaurants to fail to comply with the labelling requirements. A restaurant (or other food business) found guilty of the offence will be liable to an unlimited fine. In these circumstances, further offences may also be committed under the Food Safety Act 1990, which can lead to the imprisonment of directors and other employees in senior positions.
Jamie Cartwright is a partner and Charlotte Healy is an associate in the Disputes and Regulatory team at law firm Charles Russell Speechlys.