The Pret case

As I predicted earlier this week, it is reported by the BBC (https://www.bbc.co.uk/news/uk-45679320) that  this morning the Coroner has decided to produce a Preventing Future Deaths report in this tragic case.  Of itself this is probably not a bad thing, though I am concerned by the reported logic, so I thought I would set out some of the law for anyone interested.

The BBC reports that 'Coroner Dr Sean Cummings said he would be reporting to Environment Secretary Michael Gove over whether large businesses should be able to benefit from regulations that allow reduced food labelling for products made in shops.'

I can understand why it may appear counter-intuitive that food that is packaged on the premises for direct sale to a consumer is treated like non-prepacked food rather than packaged food, but this is what the law says.  The logic is, amongst other things, that the fact you happen to put it in a package on site rather than on a plate on site does not change the risk, and as you produce it on site you know what is in it and can answer questions. 

It appears that the Coroner thinks that because Pret sell a lot of sandwiches that different rules should apply and that this should only be for the benefit of small business.  That is not what the law says - and this is UK specific law, not from the EU. The law makes no size distinction and none of the guidance mentions it, albeit that there is specific guidance for small and medium sized businesses from which the header image on this post originates.

The Guidance states that it is: 'To support food businesses(including institutional caterers, such as workplace canteens, schools and hospitals, and carers)'  Granted it goes on to say it particularly wants to support small and medium businesses, but it is clear that the focus is much more than this.

Let's be clear though.  The law requires allergen information to be provided for non-pre-packed or pre-packed on site for direct sale food, but unlike for pre-packed food - so a sandwich purchased in a grocery store, it is not prescribed how this must be done.  The law gives business choice of how to declare allergens permitting it to be done allowing it 'by any means the operator chooses, including ... orally.'

The law does however contain further information on how orally provided allergen information must be signposted.  It states:

'Where a food business operator intends to make available the [allergen information] relating to a relevant food orally, ... the operator must indicate that details of that substance or product can be obtained by asking a member of staff.                                                        (4) The indication mentioned in paragraph (3) must be given— (a)on a label attached to the food, or (b)on a notice, menu, ticket or label that is readily discernible by an intending purchaser at the place where the intending purchaser chooses that food.'

So provided that the business signposts to a consumer on a notice, ticket, label or similar how the consumer can find out about allergens then they have complied with the law.  This point is underlined in the Government's guidance.  Which in the leading industry guidance suggests the following as appropriate signposting:

‘Food Allergies and Intolerances: Before you order your food and drinks please speak to our staff if want to know about our ingredients’

 https://www.food.gov.uk/sites/default/files/media/document/food-allergen-labelling-technical-guidance.pdf

Based on the press reports I have seen and not being involved in the case, this appears to be what Pret did. 

I have been involved in several allergen cases like this and they are always tragic.  But, here if the law has been complied with, is it right to criticise the business?   Could it have done more? Maybe, but hindsight is a wonderful thing and the law and guidance is complied with.

In all of this there is also the role of the purchaser to consider.  Those of us with an allergen have a right to expect accurate information, but we also have to take responsibility for checking -either by reading or orally if that is the way it is done.  

It will be interesting to see how the Government choose to respond to the Coroner.  The law is only a few years old and works - but regardless I would not be surprised if an amendment to the regulations is seriously considered which has an impact on costs in this type of location as we saw recently in the display of calorie information debate.   One to watch.