Module 1.4 Criminal Law
The following provisions apply until the end of 12 December 2014
Regulations implementing Directive 2003/89/EC and subsequent amendments (Directive 2006/142/EC and Directive 2007/68/EC): requirements for the labelling of allergenic foods, or their derivatives, used as ingredients in pre-packed foods.
EU Directives on allergen labelling (Directive 2003/89/EC of the European Parliament and Commission Directive 2006/142/EC) are implemented into law in England, Scotland, Wales and Northern Ireland by amendments to the 1996 Food Labelling Regulations. These provide for the declaration of the specified allergenic foods when they are used as ingredients in prepacked foods. The provisions in this legislation do not relate to foods sold loose or non-prepacked or those prepacked for direct sale.
The Food Labelling (Declaration of Allergens) Regulations 2008 came into force on 31 May 2008. This statutory instrument (SI) implemented Commission Directive 2007/68/EC amending Annex IIIa to Directive 2000/13/EC by replacing the list of allergens in Schedule AA1 of the Food Labelling Regulations 1996 with a revised list, which includes those ingredients that are permanently exempt from allergen labelling.
This SI also revoked the following:
- Regulation 34B(3) of, and Schedule 2A to, the Food Labelling Regulations 1996
- The Schedule to the Food Labelling (Amendment) (No.2) Regulations 2004
- The Food Labelling (Amendment) (No.2) Regulations 2005
- The Food Labelling (Amendment) (No.2) (Amendment) Regulations 2005
- The Food Labelling (Declaration of Allergens) Regulations 2007
The above regulations do not cover accidental cross-contamination of a product with the listed allergenic foods or food ingredients. There is other law which may be applicable to the possible allergen cross-contamination of foods that do not deliberately contain one of the EC listed foods, or their derivatives, with that allergenic food.
From 13 December 2014 the EU Food Information for Consumers (EU FIC) Regulation applies
The Regulations implementing Directive 2003/89/EC and Directive 2007/68/EC requirements for the labelling for allergenic foods, or their derivatives, used as ingredients in pre-packed foods will be revoked from 13 December 2014. These Regulations made provisions for the declaration of specified allergenic foods when they are used as ingredients in pre-packed foods only.
EU Food Information for Consumers Regulation No. 1169/2011 (EU FIC) repeals Directive 2000/13/EC as amended by Directives 2003/89/EC 2007/68/EC. The EU FIC will be enforced in England, Scotland, Wales and Northern Ireland by the Food Information Regulations 2014 (each country will have its own version which will be the same in most respects). These provide for the declaration of the specified allergenic foods when they are used as ingredients in prepacked, non-prepacked and prepacked for direct sale. The Food Information Regulation (FIR) 2014 will revoke regulations implementing the Food Labelling (Declaration of Allergens) Regulations 2008 and will provide the powers to requirements contained in the EU Food Information for Consumers Regulation. It is the duty of each food authority within its area and each port health authority within its district to enforce the regulation.
Article 14 of EC Regulation 178/2002 (General Food Law Regulation)
This provision applied from 1/1/2005. Paragraph (1) prohibits unsafe food from being placed on the market. For the purposes of the Regulation, placing on the market means the holding of food for the purpose of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves. Food is deemed to be unsafe if it is injurious to health or unfit for human consumption, and Article 14 contains provisions for determining whether food falls within this prohibition.
Paragraphs (3) and (4) of this article are particularly relevant:
“(3). In determining whether any food is unsafe, regard shall be had:
a)to the normal conditions of use of the food by the consumer and at each stage of production, processing and distribution, and
b)to the information provided to the consumer, including information on the label, or other information generally available to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods.”
“(4) In determining whether any food is injurious to health, regard shall be had:
a) not only to the probable immediate and/or short-term and/or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;
b) to the probable cumulative toxic effects;
c) to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers.”
Various criteria, have to be considered, including information provided to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods (see Article 14(3)(b)); and also the particular health sensitivities of a specific category of consumers where the food is specifically intended for that category of persons (see Article 14(4)(c)). In the allergy context, this refers particularly to foods sold as free from certain allergens or suitable for people with particular health needs (for example, those people who have coeliac disease). (See section 3.3.2)
Article 16 of EC Regulation 178/2002 (General Food Law Regulation)
This article requires that the labelling, advertising and presentation of food, including the information made available, should not mislead consumers.
These articles are enforced in Great Britain by means of the General Food Regulations No 3279/2004. Equivalent regulations apply in Northern Ireland1.
Section 14 of the Food Safety Act 1990
(Article 13 of the Food Safety (Northern Ireland) Order 1991)
This provision makes it an offence for anyone to sell to the purchasers prejudice, any food which is not of the nature, substance or quality demanded by the purchaser.
Section 15 of the Food Safety Act 1990
(Article 14 of the Food Safety (Northern Ireland) Order 1991)
This provision makes it an offence to falsely describe or present food. More particularly, it is an offence for food labelling to be false or likely to mislead as to the nature, substance or quality of the food. The section also applies in relation to the advertising and presentation of food.
It remains widely accepted that individuals who have allergic reactions to certain foods should take care to scrutinise food labels more closely than an average consumer does.
Enforcement
It should be noted that criminal legislation is enforced through local enforcement authorities. It would be prudent for manufacturers to advise their local officers of the management measures they have adopted, to obtain advice on the adequacy of the measures, and to increase the likelihood of the acceptability of such measures as constituting a defence of due diligence, should the need arise. Ultimately, however, in the event of a prosecution the adequacy of a manufacturer’s due diligence procedures would be a matter for the Courts.
