Last month, the Food Standards Agency (FSA) published a long-anticipated update to its technical guidance relating to new laws on food allergen labelling and information requirements. This follows a UK-wide consultation to change allergen labelling laws after the tragic death of Natasha Ednan-Laperouse as a result of an allergic reaction to sesame in a Pret-A-Manger baguette she had eaten. The updated guidance can be located in full here.

The technical guidance is intended to provide guidance to food business operators (FBOs) and enforcement authorities on the legislative changes coming into effect under The Food Information (Amendment) (England) Regulations 2019 (referred to as "Natasha's Law") on 1 October 2021. We discussed these changes in further detail in a previous article.

How has the technical guidance been updated?

Natasha's Law requires that any food that is prepacked for direct sale (PPDS) must display the name of the food and a list of ingredients directly on the packaging or label. If the food contains any of the 14 prescribed allergens, these must be highlighted or emboldened on the label. 

Currently, FBOs can provide mandatory allergen information for PPDS food by any means that they choose, including via notices or orally by members of staff. As of 1 October 2021, this will no longer be the case for PPDS foods.

Amongst other things, the updated technical guidance seeks to clarify the definition of PPDS (which currently has no legal definition in EU or UK legislation). According to the technical guidance, for a food to be PPDS, it must meet the following criteria:

• Is the food presented in packaging?
• Is it packaged before the consumer selects or orders it?
• Is it packaged at the same place it is sold?

A number of examples of what the FSA determine to be PPDS foods are included in the technical guidance. This includes (amongst others):

• sandwiches placed into packaging by the FBO and sold from the same premises
• a café giving away packaged samples of cakes, and
• a butcher who makes sausages which are prepacked to be sold on.

It is important to note that any food that is packed on the premises by the same FBO in anticipation of an order, before being offered for sale, would be PPDS food. However, any food that is sold without packaging – or is served with packaging but the food can still be altered without opening or changing the packaging (eg a hotdog on a cardboard tray) – would not be considered to be PPDS food.

Other updates to the technical guidance include new information relating to the distance selling of PPDS foods (in light of increased use of home delivery services), further guidance on the use of "gluten-free" statements and clarification on the voluntary use of allergen advisory statements on labels.

What does this mean for FBOs?

The FSA has promised to continue to engage with the industry and enforcement authorities over the next few months to raise awareness and ensure the changes are properly understood.

While the FSA hopes that the updated technical guidance provides enough clarity to enable FBOs to get ready for the changes coming next year, questions continue to remain over the definition of PPDS and what food products fall in and out of scope of Natasha's Law. If not doing so already, all FBOs should carefully examine the legislatives changes under Natasha's Law and consider the FSA's criteria in the technical guidance as to what constitutes PPDS food.

It may be that many FBOs sell a variety of products that fall under different allergen information provisions. It is therefore crucial to determine which products fall in and out of scope of the legislative changes and what approach is required for each product. 

1 October 2021 may seem like the distant future, but FBOs will need to carefully consider any operational and logistical changes to ensure compliance with the new rules. Asking the right questions at an early stage will be important. For example: 

• What product lines are affected?
• Do you need to update your labelling processes?
• Do you need to engage with your design/marketing team?
• Have you got up-to-date allergen information from suppliers?
• Do you need to update your allergens management systems both internally and with suppliers?

This may require careful and considered planning over a number of months in readiness for the new regulations.

It is important to note that the technical guidance is indeed only "guidance". It is intended to accompany and clarify legal obligations under the Food Information Regulations 2014 (as amended by Natasha's Law) and Regulation (EU) No. 1169/2011. It is does provide for any separate legal obligations in itself.

Nevertheless, enforcement authorities will bear in mind any compliance/derogation from the technical guidance in the event of an allergen incident and it is designed to assist FBOs with compliance of the regulations. Compliance with the guidance is therefore recommended, where possible.

Get in touch

If you're a FBO or a food business in the supply chain and require advice on implementing Natasha's Law or general allergens management, please do get in touch with our experts in food law.