Food allergy, a summary of eight cases in the UK criminal and civil courts: effective last resort for vulnerable consumers?

Abstract

Food allergy has a forensic context. The authors describe eight cases in the UK courts involving fatalities, personal injury or criminal non-compliance with food law from mainly 'grey' literature sources. The potentially severe consequences for people with food allergy of contraventions of labelling law have led to enforcement action up to criminal prosecution for what might otherwise be regarded as 'trivial' non-compliance. The authors suggest there should be central collation of such cases. Non-compliances should be followed up in a more rapid and robust manner. Evidence of fraud in the catering supply chain supports recent calls for zero tolerance of food fraud. Businesses must guard against gaps in allergen management, for which there are readily available sources of training and guidance, but also against fraudulent substitution in the supply chain, about which training and guidance should be developed. New allergen labelling legislation and case law appear to place responsibility on food businesses even for the forensically problematic area of allergen cross-contamination. The courts can be an effective last resort for vulnerable consumers; however, there is evidence of knowledge and skill gaps in both the investigation and prosecution of potentially serious incidents of food allergen mismanagement and mislabelling. Thorough investigation of food allergy deaths is required with a tenacious and skilled approach, including early realisation that samples of the food and/or stomach contents from a post mortem examination should be retained and analysed. The supply chain must be rigorously examined to find out where adulteration or contamination with the fatal allergen occurred.

Food allergen detection by mass spectrometry: the role of systems biology

“…8 However, cross-contamination of allergens into unlabeled foods may still occur in shared production facilities, on shared equipment, or along the supply chain. 9 In one European study, peanut was found in 25% of cookies and 43% of chocolate labeled with the precautionary phrase ‘may contain.’ More worrying was that 11% of cookies and 25% of chocolate without advisory labeling tested positive for peanut. 10 In another example, the US Food and Drug Administration found evidence of milk in 75% of chocolate products with advisory labeling and evidence of milk even in products without advisory labeling or specifically with dairy-free claims.…”

Restaurant disclosure of food allergens: Analysis and economic implications

“…Leavitt (2011: 968) and Brewer (2016: 310) discuss various legal theories in which a restaurant could be found liable to customers for injuries arising from a failure to warn about a food allergen or providing incorrect information regarding the presence of a food allergen in a menu item. Unfortunately, this is not an uncommon occurrence (Gowland and Walker, 2014: 1981–1982; Kronenberg, 2012: 118; Leavitt, 2011: 970). Clinical records suggest that foods sold in restaurants and other non-pre-packaged formats present a greater risk of fatal and near-fatal allergic reactions relative to pre-packaged foods (Commission of the European Communities, 2008: 51).…”

Managing Food Allergens in the U.K. Retail Supply Chain

“…Incidents are identified by various means, including by the companies' own checks, consumer reports, and enforcement surveillance. Compensation in civil law for loss or damage caused by an allergic reaction to a food supplied is a foreseeable risk for food businesses (26).…”