In addition to the criminal regime, liability can also arise at civil law under the product liability provisions of the Consumer Protection Act 1987 or under the common law of negligence.
Consumer Protection Act 1987
Under the Consumer Protection Act 1987 (CPA), a manufacturer can be held liable to consumers for injury, loss or damage suffered as a result of them supplying a defective product2, whether or not they are negligent.
In negligence, it is well established that manufacturers owe a duty of care to their consumers to supply safe products. In order to discharge their duty satisfactorily they are required to take all the steps a reasonable manufacturer in the same circumstances would have taken to ensure the safety of his products.
A manufacturer’s position under the Consumer Protection Act 1987 for supplying a defective product and under the rules of negligence will vary in different circumstances and may or may not be affected by advisory notices.
Allergens that are, or may be, unintentionally present in products will not, of course, be labelled as ingredients.
Under the Consumer Protection Act 1987, a product unintentionally cross-contaminated with an allergen may be defective especially when the presence is outside the specification. The question then arises as to whether or not advice about the possible presence of the allergen will effectively cure such a defect. The ability of such advice to cure such a defect may depend on a number of factors (for example the size and prominence of the advisory statement and consumer expectation as to the nature of the product) and would be decided on a case by case basis.
A manufacturer may be deemed to be negligent either in the manufacture of the product or in its presentation. Where good manufacturing practices or other due diligence measures are in place, they will go a long way to rebutting negligence in manufacture. Nonetheless, a manufacturer could be negligent in respect of their labelling if they fail to give advice in a situation where, despite the operation of good manufacturing practices (GMP), the manufacturer should have been aware of a significant likelihood of product contamination.
In practice, it will become more difficult for a manufacturer who does not provide the relevant advice to establish that their product is not defective under the Consumer Protection Act 1987, or that they are not negligent in the labelling of their product where a significant number of other suppliers are providing advice on the potential presence of allergens in their products.
In civil law, individual consumers have the right to bring actions against manufacturers directly for compensation in respect of any loss, damage or injury they have suffered.
Manufacturers who employ good manufacturing practices reduce the risk of cross-contamination of their food products by any allergens, and should therefore minimise their legal liability in respect of on-pack claims or other indications of freedom from specified allergens. However, the provision of an incorrect list could bring such manufacturers within the food safety and consumer protection controls detailed above, and it is thus a matter for individual companies’ commercial judgement to decide whether or not such claims should be made or lists compiled. Such advice should not be provided unless supported by an appropriately documented quality system.