Businesses urged not to be allergic to public liability insurance purchase

December 2018

Food allergen labelling has unfortunately been in the spotlight in recent weeks, with the case of Natasha Ednan- Laperouse, who died in 2016 after eating a Pret à Manger sandwich containing undeclared sesame seeds, potentially set to bring about a change in the law.

Whilst Pret à Manger was not obliged to put allergen advice on its sandwich’s wrapper, the brand’s reputation has been severely damaged. PR experts even suggest the company’s slow and inadequate response to the crisis has betrayed the brand’s values.

The food chain acted within current law with regard to the packaging of food made on the premises, so punitive fines and prosecutions will not result. However, food businesses regulated by the Food Safety Act 1990 and the General Food Law (Regulation (EC) 178/2002), as well as the European Food Information for Consumers Regulation No 1169/2011 (FIC) and the Food Information Regulations 2014 (FIR), must ensure their allergen labelling is compliant, or they could face both penalties and reputational damage.

Food manufacturers and food service providers must not render food injurious to health, or falsely describe it. They must consider the “possible toxic effects, including those where these result from a combination of substances in the food.

They must also consider the particular health sensitivities of a specific category of consumers where the food is intended for that category, for example when it contains an allergen.”

Any pre-packed food, which cannot be changed without opening or changing the packaging, must carry, either on the packaging or on an attached label, the food’s name and a printed list of ingredients, including allergens, in a specified font size. It must provide information on allergens, substances produced or derived from allergens and allergens used during processing.

The 14 major food allergens EU law expects to see highlighted in food produced, sold and served are: cereals; crustaceans; eggs; fish; peanuts; soybeans; milk (including lactose); nuts; celery (including celeriac); mustard; sesame seeds; sulphur dioxide (sulphates) if more than 10 milligrams per kilogram or 10 milligrams per litre in the finished product; lupin (including lupin seeds and flour) and molluscs.

Some foods also require allergen-linking, such as tofu (derived from soya) and tahini paste (made from sesame seeds).

Allergens can lurk within a wide variety of food and dishes and customers must be made aware of this, whether they enjoy a soup, ice cream, pastry or something else.

Whilst the Natasha Ednan-Laperouse case resulted in no legal penalties, other high-profile cases have. In June 2017, pub operator, Greene King, was prosecuted for serving a dessert containing eggs to an 11-year-old with an egg allergy. It had not updated its allergy books after swapping its dessert supplier, so every Greene King pub used out-of-date allergen information for over six months. The fine imposed was £24,000 plus legal costs.

In May 2016, an Indian restaurant owner was jailed for six years for gross negligence manslaughter, having caused a customer’s death by serving a curry in which the recipe’s almond powder was replaced by cheaper peanut powder.

Businesses with public liability insurance in place are able to cover legal costs and compensation claims can also be covered. Businesses allergic to such non-mandatory cover, however, would have to pick up the bill themselves. This is an unnecessary risk, when public liability insurance is easy-to-buy and highly affordable. It can also be bought as a package that includes employers liability insurance - a legal requirement for all employers.

The Natasha Ednan-Laperouse case has heightened allergen awareness, which could see more litigation in the future. If you need assistance in putting appropriate public liability insurance cover in place to protect your business’s liquidity should you cause harm a member of the public or damage their property, please get in touch.