knowledge 16 October 2018 |

The Effects of Inadequate Food Labelling may be felt Beyond the Factory Floor

The recent inquest into the tragic death of teenager Natasha Ednan-Laperouse in England following unknowing consumption of sesame seeds has highlighted the dangers of hidden food allergens in the products we consume.  Where death or injury results from the inclusion of allergens without adequate labelling in food products, civil claims may of course result.  It is, however, also important for food business operators to be aware of the potential regulatory and criminal consequences where consumers are harmed by hidden allergens.

Ednan-Laperouse had purchased a baguette at Heathrow airport prior to boarding a flight, unaware that it contained sesame seeds, to which she was seriously allergic.  The café did not have any food allergen advice on its wrappers due to reduced labelling requirements for products made on site.  Having boarded her flight Ednan-Laperouse tragically died as a result of a severe allergic reaction to sesame seeds contained in the baguette.

Regulatory context

Food safety in Ireland is monitored and regulated by the Food Safety Authority.  Irish legislation governing the provision of food information to consumers provides for criminal liability where there is non-compliance.  

This legislation includes:

• European Union (Provision of Food Information to Consumers) Regulations 2014
• Health (Provision of Food Allergen Information to Consumers in respect of Non-Prepacked Food) Regulations 2014
• European Union (Origin Labelling of Meat) Regulations 2015
• Food Safety Authority of Ireland Act 1998

Food business operators at all stages of the food chain should be aware of the scope and effect of these legislative provisions.

The Food Safety Authority is responsible for the enforcement of all food legislation in Ireland and it contracts with a number of different official agencies who are responsible for on-site enforcement of food safety standards.  The Food Safety Authority of Ireland Act 1998 grants extensive powers to investigate and, if necessary, prosecute breaches of food safety legislation, supplemented by specific provisions set out in Regulations entitling the official agencies to conduct product sampling and analysis and:

• enter, search and secure premises
• require the production of records
• inspect, copy, remove and retain records
• require the provision of assistance to access electronic records, and
• require the provision of information.

Aside from disruption to the business and the reputational damage that may occur in the event of a serious incident arising from hidden food allergens, where a body corporate, or a person acting on its behalf, commits an offence which is committed with the consent, connivance or approval of, or is attributable to any neglect or default by any director, manager, secretary or any other officer of that entity, or a person acting in that capacity, that person is also guilty of an offence.  Company officers and managers may be prosecuted and punished as if guilty of the original offence.   

The Court of Appeal has recently given a new, wider interpretation to the meaning of “manager” of a body corporate for the purposes of attributing criminal liability to that person in the event of offences by the body corporate. See our previous briefing here.  This means that a person may be treated as a manager of a food business operator even where he or she does not have an overarching management role in respect of the business as a whole.  A serious food allergen incident will likely result in detailed internal and external investigations into the food business operator’s processes and production standards and may involve a number of different areas within the business being placed under scrutiny.

Consequences

The potential criminal penalties here are significant.  For example, the European Union (Provision of Food Information to Consumers) Regulations 2014 provide that a food business operator is guilty of an offence if it presents food in a manner which is misleading, inaccurate, unclear or not easy to understand for the consumer and there are stringent penalties for failing to label food in accordance with the regulations, including the possibility of a fine up to €500,000 or up to 3 years’ imprisonment or both.  In addition, unless it is satisfied that there are special and substantial reasons for not so doing, the court must order the convicted person to pay to the prosecuting authority its costs and expenses associated with the investigation, detection and prosecution of the offence.  This includes costs associated with any sampling, testing, examination or analysis as well as the costs of any outside consultants or advisors who were engaged.

Conclusion 

Awareness of food allergens has increased and it is essential that businesses ensure that full and adequate labelling is implemented.  Food business operators should regularly review their training, procedures and practices and their compliance with the relevant legal requirements, as well as developing incident response plans.