Allergens: ‘May contain’ labelling unlikely to protect against prosecution

If a consumer with an allergy to peanuts went into anaphylactic shock after eating a dish labelled with 'may contain nuts', such a warning may not be enough to protect the operator, according to the legal expert.

The expert, who spoke earlier this week at The Institute of Food Safety Integrity & Protection's (TiFSiP) food law in practice conference in London, said: "It seems to me that labelling a menu with 'may contain' may not be adequate protection and the primary responsibility of that food has to be with the supplier of it."

It was poor practice to expect consumers to be able to make their own risk assessment, according to the lawyer, who could not be named because of reporting restrictions at the conference.

A report into 'may contain' labelling last year by TiFSiP claimed the practice was a big issue in the hospitality sector.

Challenge to operators​

The terminology was being used so regularly by suppliers to the sector that it was a challenge for operators to provide accurate information to diners.

At the time, TiFSiP technical policy adviser Eoghan Daly believed the warning was devaluing the message, as well as being a potential risk.

He said: "Food businesses that pass on all 'may contain' statements without being confident they are accurate can 'devalue' the warning, reduce choice and potentially provide false impressions about the allergy risks.

"Similarly, blanket approaches that ignore all 'may contain' declarations could provide false assurances with food allergies."

The legal expert warned that adding a 'may contain' to menus was not adequate protection and advised food businesses to ensure they had robust hazard analysis critical control point systems in place.

Food integrity​

It was essential businesses knew exactly what was going into their food and what they were giving to their customers.

She concluded: "Is it ['may contain' labelling] a get out of jail free card? I don't think so."

Obligatory labelling of allergens on food came into force in the hospitality sector on 13 December 2014.

Sinc then, operators must be able to inform customers​, in one way or another, whether each dish on their menu contains one of the 14 known allergens.

Since it came into force, the sector has been widely criticised for not doing enough to get it right, with some going as far as calling it a "bureaucratic nightmare".