Food allergens labelling requirements in hospitality services

Rules exist that mitigate that risk of exposure, through making it mandatory for food business operators, whatever the setting in which they operate, to provide information to the consumers regarding the presence of allergens in the food that is served, sold or given to them for free, thereby allowing consumers to avoid eating any food that would put them at a risk.

These rules stem from a European regulation, namely Regulation (EC) No 1169/2011 on the provision of food information to consumers ('FIC Regulation'). The FIC Regulation notably identifies a list of fourteen categories of substances that are known for causing allergies or intolerances[1]. The way allergen information must be provided varies in function of whether the foods are prepacked or not.

A ‘prepacked food’ is any single item for presentation as such to the final consumer and to mass caterers, consisting of a food and the packaging into which it was put before being offered for sale. This applies whether such packaging encloses the food completely or only partially, but in any event in such a way that the contents cannot be altered without opening or changing the packaging.

For such prepacked foods, the FIC Regulation requires that where any ingredient or processing aid listed as an allergen, or derived from a substance or product listed causing allergies or intolerances is used in the manufacture or preparation of a food and still present in the finished product, even if in an altered form, then this ingredient or processing aid must appear clearly on the label of the prepacked food. More specifically, these ingredients must be indicated in the list of ingredients of the product, and the name of the substance or product causing allergies or intolerances must be emphasised through a typeset that clearly distinguishes it from the rest of the list of ingredients, for example by means of the font, style or background colour.

The onus of ensuring compliance with the allergen labelling requirement is usually on the food business operator that supplies the prepacked food; however that may not necessarily be the manufacturer of that food. For example, an operator merely distributing in the UK prepacked products originating from another country needs to ensure that the label of those products complies with the requirements of the FIC Regulation as applicable in the UK.

Non-prepacked food and foods packed on the sales premises at the consumer’s request or prepacked for direct sale are not subject to a similarly detailed EU-harmonized requirement. Indeed, while the FIC Regulation makes it mandatory that in relation to these products the allergen information is provided, it leaves it to the Member States to adopt national measures concerning the means through which the information is to be made available and, where appropriate, its form of expression and presentation.

In the UK, the relevant requirements are set out in Regulation 5 of the Food Information Regulations 2014, which leave it to the relevant food business operator to decide the means whereby such operator makes available the information regarding the presence of certain substances or products causing allergies or intolerances. It is the relevant operator's responsibility to ensure that the allergen information is adequately conveyed to the consumer.

In all those instances where the food is not prepacked –such as, in a restaurant, a cafeteria, a sandwich corner or a sushi bar, the information may be provided orally. In that case however, the operator must indicate that details of that substance or product can be obtained by asking a member of staff, by means of a label attached to the food, or a notice, menu, ticket or label that is readily discernible by an intending purchaser at the place where the intending purchaser chooses that food.

Given the consequences that may be attached to non-compliance, be it on a regulatory level or from a reputational point of view it is advisable for hospitality businesses to review the practices and policies they have in place in relation to the provision of food allergen information to their consumers. All the more so because the issue has lately been under closer scrutiny due to some very serious incidents caused by a lack of allergen information (with potential legislative changes afoot in the UK –stay tuned!),These practices and policies should include adequate staff training where businesses rely on the oral provision of information.

Businesses operating outside the UK must also take into consideration that the rules in place for non-prepacked foods may vary from one jurisdiction to the other, and the relevant internal policies and training programmes may need to be adapted to comply with local requirements.