Newsletters Criminal Regulatory 7th Dec 2018

Food Labelling in the Wake of the Death of Natasha Ednan-Laperouse

Few Coroners’ Inquests attract as much public attention as that into the death of fifteen-year-old Natasha Ednan-Laperouse. And nobody who followed those proceedings could help but be left shaken, particularly by the account of Natasha’s father, who was present when his daughter succumbed to a catastrophic anaphylactic reaction as a result of eating a baguette that, unbeknownst to Natasha, contained sesame seeds. But as well as a poignant human tragedy, the case may well mark a watershed moment in the regulation of food labelling, particularly as regards allergen advice.

Pret-á-Manger, who produced the baguette that contained the sesame which ultimately caused Natasha’s death, operated under Regulation 5 of the Food Information Regulations 2014 and Regulation (EU) No 1169/2011. Regulation 5 applies to any business that sells food that is not prepacked on site, or is prepacked for direct sale only. As any customer of Pret-á-Manger will know, as the food they sell is prepared in kitchens on site, or very close nearby, they can avail themselves of the provisions of Regulation 5. Those provisions enable such retailers to provide allergy information by any means, including orally. But if the business is selling products that contain ingredients listed in Annex II of Regulation (EU) No 1169/2011, they must indicate by a label on the packet or on a notice, menu, ticket or label that is “readily discernable by an intending purchaser at the place where the intending purchaser chooses that food”. Sesame seeds are included within the Annex II list.

Although they are a conspicuous example, Pret-á-Manger are not alone in disseminating allergy information in this way. Greggs is a retailer of similar size that adopts the same approach, as do countless other food outlet brands that have become such a prominent feature of high streets, particularly in city centres. So the implications of the findings of this inquest were inevitably going to be far reaching.

Throughout the inquest, the Assistant Coroner was clearly sceptical about businesses of the scale of Pret-á-Manger being permitted to disclose allergy information in this way. When questioning Pret-á-Manger’s Director of Risk and Compliance – Jonathan Perkins – he observed that a cynical person might take the view that Pret-á-Manger were taking advantage of a “loophole” intended to be used by small-scale, independent businesses.

That observation was perhaps a little unfair. There is nothing in the text of either the 2014 Regulations, or the EU Regulation to which they give voice, that it ever intended that only small businesses should adopt this approach, and no evidence was adduced at the inquest to support the view that that was ever the intention of the drafters of those regulations. Indeed, had that been the desire of the drafters, it is something that could easily have been achieved by, say, restricting the provisions of Regulation 5 to businesses of a certain size based on turnover, or some similar such measure. And whilst the benefits of this alternative means of providing allergy information to small businesses are obvious, there are also benefits and good reasons for larger operators to adopt this approach. When giving evidence on behalf of Pret-á-Manger, Mr Perkins explained that it was the considered view of the business that the alternative of individually labelling every item with the allergy information relating to it could inadvertently increase the risks posed by mis-labelling. He suggested that in a kitchen setting in every Pret-á-Manger outlet, it was harder to maintain the safeguards that large-scale factory operations had in place to ensure, with a high degree of confidence, the integrity and accuracy of the labelling process.

Ultimately, this view did not translate into any factual finding by the Assistant Coroner, or any part of his conclusions or verdict. But he did explain that a Preventing Further Deaths Report would be addressed to the Secretary of State for the Department of Environment, Food and Rural Affairs in relation to considering whether large food business operators should benefit from Regulation 5. Since the Inquest, Michael Gove has met the Ednan-Laperouse family, and has indicated that he is supportive of such a change in the law, dubbed ‘Natasha’s Law’, which, he says, could be brought onto the statute books as early as Summer 2019.

Regardless of any change in the regulations, Pret-á-Manger, Greggs and Deliveroo are amongst food outlets that have already announced extensive changes to the way they provide customers with allergy information. And to any business that continues to adopt the Regulation 5 approach, the conclusions of the Assistant Coroner served as a stark warning of the need to make allergy signage “readily discernable”. Whilst stopping short of concluding that the stickers used by Pret-á-Manger fell short of the 2014 Regulations, the Assistant Coroner did conclude that they were “inadequate in terms of visibility”. And whilst not concluding that inadequate labelling was a direct cause of Natasha’s death, the narrative verdict did include the conclusion that she had been “reassured” by the absence of allergen information on the packaging.

Given the attention that this case has attracted, some of the observations of the Assistant Coroner, and the reaction from Government ministers, all businesses operating in this sector would be well advised to reflect on their current approach to allergen information and food labelling. As awareness of these issues spreads in public consciousness, naivety is less and less likely to offer any refuge, particularly for large-scale food operators.

Paul Renteurs represented the junior doctor who provided medical care to Natasha during a flight to Nice, when she began to experience anaphylaxis. The junior doctor in question was commended by the Assistant Coroner for his actions. Natasha tragically died later that day.


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