Did you know that prosecutions for allergen incidents increased nearly tenfold over a six-year period?
Research published by Dr Hazel Gowland, founder of Allergy Action, renowned expert witness, and Technical Advisor to the Safe to Trade Scheme found that prosecutions rose from just three in 2014 to twenty-seven in 2019. It’s estimated that two million people in the UK are living with a diagnosed food allergy.
Rob Easton, Head of Environmental Health at Shield Safety, gives an overview of the research findings, compares it with analysis undertaken by Shield Safety, and discusses the implications for food businesses.
The first thing to note is the significant increase in prosecutions and the level of fines being imposed over the period.
In total, seventy prosecutions were made and of these sixty-eight were successful. The average fine for the food business was just under £1,000 in 2014 and rose drastically to £21,000 in 2020. The analysis stops in 2020, as the COVID-19 pandemic meant an overnight change in eating out, a refocus of Environmental Health resources and a slowing of the legal system drastically reduced cases taken to court. The analysis is important to food businesses as it demonstrated a sharp upward trend in prosecutions and fines.
The cost of prosecution goes beyond the fines; legal costs will have to be paid for both parties, Victim Surcharge levied, and a high possibility of civil claims will follow a criminal prosecution. Dr. Gowland’s research also found that four individuals received custodial sentences, and there were also incidents of community service being imposed as part of the conviction. There were several cases where Directors and Managers were fined personally and even one case of a staff member being prosecuted for serving a pizza containing milk to a child with a milk protein allergy. This all demonstrates there is a high financial, as well as human cost when there is an allergy incident.
The most common allergen involved in cases was peanut, with over half the cases (35) relating to them. Milk and Egg were the next highest at nine cases each. It is interesting to note that there were no prosecutions relating specifically to celery, mustard, Sulphur Dioxide, lupin, and molluscs. These findings are similar to those of the research completed by Shield Safety.
Vicki Wood, Senior Safety Consultant, led a team of Environmental Health Practitioners in reviewing over 2000 allergen incidents over a four-year period. This found the most common cause of allergen incidents was peanut (23%), followed closely by gluten (20%) and then milk (13%). An explanation for the higher rate of prosecution for peanut incidents could be the more severe immediate symptoms reported by allergic consumers to peanuts compared with gluten. The research team at Shield Safety found that of the 2,000 incidents reviewed, there were only 4 cases of sulphites, 3 of celery, and 1 of lupin.
What does this mean for food businesses?
Whilst there is still the need to identify and communicate the deliberate inclusion of the 14 regulated allergens, it seems that peanut, milk, and nut allergens are more likely to cause severe symptoms and lead to legal action. Businesses may wish to focus on these allergens when designing dishes and menus and consider how the ingredients containing the allergen are avoided or substituted. Dr. Gowland also identifies some emerging trends in allergen incidents. The growing use of food delivery platforms sets a new challenge for communicating allergens, with some businesses requiring guests who declare an allergen to call the food business and in limited circumstances, some food businesses choosing not to deliver food to those declaring a food allergy. An unintended consequence of this is that some food-hypersensitive consumers will order without declaring their allergy and thus the optimal allergen controls will not be implemented in the food business, putting the allergic consumer at risk. With allergy rates rising in the UK, this means business is excluding a growing number of potential customers from purchasing their products and their choice is being further restricted.
The research also found that the increased prevalence of vegan products represents a risk to consumers who are highly sensitive to milk and eggs and may not wish to ‘make a fuss’ when ordering. The customer will order the vegan product with the assumption that is free from milk and eggs, but unfortunately, the business may not be able to eliminate the presence of this allergen to a safe level required by the most sensitive of allergic consumers. Whilst the product may not include milk and egg as an intended ingredient, the necessary segregation may not be in place and therefore trace amounts of the allergen may be present in the food and at a level that can cause a reaction. Food businesses should be aware that customers are using vegan claims as a method of avoiding food with allergens and consider if they can reduce the risk to zero for cross-contamination or how the risk is communicated to the consumer.
