The Food Standard Agency (FSA) revealed last week its new voluntary guidelines to warn consumers about possible allergens in food eaten in restaurants and cafes, and also food that is not prepacked.
Its guidelines, backed by an advice booklet which warns that "eating even a small bit of food" can cause illness or death, suggests that products made with ingredients that may cause an allergic reaction should be listed on a card, label or menu.
However, the guidance also points out that this is not compulsory and that an alternative is to ensure that all staff are equipped to answer accurately questions from consumers about whether the food contains allergenic ingredients. The guidance stresses the importance of ensuring that employees do not guess the answer to such a question.
Owen Warnock, partner and food law expert at international law firm Eversheds said: "Allergy information is compulsory on prepacked food, but EU law gives member states an option to require, or not to require, written information about allergens in connection with food not packed at the time of sale (even if it is packed after the customer asks for it). The same exception applies to food eaten in restaurants and cafes. The UK took up the option not to require written labelling in those situations.
"The new guidance was produced after extensive consultation with industry, which is very encouraging. I also welcome the fact that the guidance expressly says that it shouldn't be used as a guide to enforcement by the authorities - this means that non-observance of the guidance is not to be regarded as an indication that an offence has been committed. This is quite right because this is a best practice guide."
Warnock continued: "The guidance assumes that it is up to the allergic consumer to ask for information about ingredients and that there is no legal obligation on the business selling the food to volunteer that such ingredients have been used. It is very reassuring that the FSA have taken this position, which we believe accords with the law."
"I welcome the fact that the guidance stresses that if, however, the consumer is given information about allergenic ingredients it must be accurate and points out that if information is given which is inaccurate, it is likely that the business is committing a criminal offence and may be liable to damages. Overall, the FSA has published some great practical guidance about how food businesses should control their exposure to this risk."