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Changes in Allergy Law - do they go far enough?

Michelle Victor, Partner

A number of high profile cases have hit the media focusing the spotlight on the allergy world. Leigh Day represent the families of Natasha Ednan- Laperouse, Owen Carey and Celia Marsh.
 
Natasha's Law
 
On 17 July 2016, Natasha, aged 15, was due to go on holiday to Nice with her father and her best friend. Prior to boarding  the  BA  Flight,  Natasha  purchased and began consuming  an Artichoke, Tapenade and Olive Baguette. Unbeknown to her, the baguette contained sesame to which she was allergic. Consequently, Natasha suffered a fatal anaphylactic reaction.
 
Natasha’s family have championed a tireless campaign for changes to be made to food labelling law in their daughter’s name. With Leigh Day’s support, the family have successfully secured ‘Natasha’s Law’ which shall come into force in 2021 and shall require all food business operators selling foods pre-packed for direct sale (PPDS) to list full ingredient labelling.
 
Given that Natasha’s Law will eradicate the option of communicating allergen information orally
with regards to the sale of foods PPDS, should legal reform be extended to non-prepacked foods?
 
Non-prepacked Foods (NPP)
 
NPP foods are best described as foods sold loose or foods packed at the consumer’s request. They
can encompass:-
1.   Foods sold loose in a retail environment such as at a delicatessen counter (cheeses) or in a bakery (croissants); and
2.   Foods  sold  in  a  catering  environment  such  as  meals  served  in  a  restaurant  or  foods
purchased from a takeaway outlet packed at the consumer’s request.
 
As with foods PPDS, Regulation 5 of the Food Information Regulations (FIR) governs this category of foods and enables flexibility for provision of allergen information when selling NPP foods. Food business operators selling NPP foods, such as restaurants, remain able to communicate their allergen information to consumers in writing or orally which can invite disaster.
 
Owen Carey
 
We  are  representing  the  family  of Owen Carey  who,  like  Natasha,  suffered from a number of allergies including dairy. Owen was celebrating his 18th  birthday with his family and girlfriend when he suffered a fatal anaphylactic reaction after eating a meal at Byron which unbeknown to him contained milk.
 
The  recent  Inquest  into  Owen’s death heard  that  Byron’s menu  was misleading  as it  failed to mention that the ‘grilled chicken breast’ was coated with buttermilk. Relying on the contents of the menu, Owen ordered and consumed the burger. Sadly, within 30 minutes, Owen collapsed and died. Owen’s death occurred  despite him communicating his allergies to staff members orally.
 
Owen’s legal team argued that his death was clearly preventable. Had he known the burger was coated in buttermilk he would not have chosen this option.
 
From  2021,  further  protection  will  be  afforded  to  allergy  sufferers  purchasing  foods  PPFD  yet conversely,  food  business  operators  continue  to  enjoy  a  wide  discretion  as  to  how  they communicate   allergen   information   to   consumers   purchasing   NPP   foods.   This   approach   is inconsistent and differs across establishments. We are therefore working with the Carey family to achieve their goals of better safeguarding allergy sufferers. The family have called for:-
 
1.   Improved transparency about what’s in our food;
2.   More prominent signage of allergen information on the menu;
3.   Mandatory  communication  by  all  waiting  staff  to ask  all  customers  whether  they  have
allergies when ordering their food; and
4.   Improved allergy training in restaurant settings.
 
Celia Marsh
 
We are also instructed to represent the family of Celia Marsh who died after she consumed a ‘Super-veg rainbow flatbread’ from Pret-a-Manger. The flatbread marketed as ‘dairy-free’ contained dairy protein to which Celia was highly allergic. Sadly Celia suffered a fatal anaphylaxis at the age of 42 leaving behind 5 children. Celia’s Inquest is likely to take place in 2020.
 
Time for further reform?
 
The Food Standards Agency report there are more than 2 million allergy sufferers in the UK alone1 and global statistics demonstrate that food induced anaphylaxis is ever increasing. We have seen in the tragic cases above, allergy sufferers are not being adequately protected. Are food regulations fit for purpose? Or is further legal reform now necessary? Leigh Day is working with families to help afford greater protection to allergy sufferers.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
1 Food allergen labelling and information requirements under the EU Food Information for Consumers Regulation No. 1169/2011: Technical Guidance, Food Standards Agency, April 2015, Available at: https://www.food.gov.uk/sites/default/files/media/document/food-allergen-labelling-technical-guidance.pdf (accessed 14 October 2019)
 

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