Allergy Catering Manual
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Legal Implications
As the law now stands, allergic customers are very comprehensively protected under existing general food and consumer protection legislation. See the Food Standards Agency website for details.
Food Safety Act 1990 and the General Food Law Regulations 178/2002 2005
To avoid potential liability under the Food Safety Act (now to be incorporated into the European General Food Law Regulations), you must provide customers with information that will enable them to assess any risks arising from allergens in your products and to avoid the food if necessary. Under the new General Food Law Regulations you are prohibited from selling ’unsafe’ food (which, in the case of an allergic person, would include their allergen) to your customer.
The onus is on you as the caterer to find out the risks to allergic customers which your products might present and take action to avoid those risks, both by providing essential allergy information to your customers and by ensuring that anyone involved in the preparation or serving of the food to your customers understands the risks involved and how to avoid them.
You could be guilty of a criminal offence under the Food Safety Act 1990 and, possibly, under the General Product Safety Regulations 1994, if an allergic customer suffers a reaction as result of eating an allergen about which you should have notified them.
If found guilty you could face a maximum fine of £20,000 or 6 months in prison.
Consumer Protection Act 1987 - Civil Liability
Under the Consumer Protection Act a customer suffering an adverse reaction to one of your products may sue you for compensation as a result of being sold a 'defective' product e.g. one whose safety is not such as the customer was entitled to expect.
The customer would not need to prove that you were negligent - only that he/she has suffered an adverse reaction and that, on the balance of probabilities, a defect in your product (the presence of an allergen) caused his/her injury.
Under Civil law, you owe a Duty of Care to all your customers. You must take all reasonable steps to ensure the safety of the product, including making the presence of an allergen known to anyone who might need to be aware of it.
Allergic individuals owe themselves a particular 'Duty of Care' and must exercise more than the usual level of diligence when ordering and consuming foods. They are expected to scrutinise prospective purchases more closely than the average consumer and it is your legal duty to meet their needs.
In view of widespread publicity surrounding deaths and serious reactions arising from allergenicity, it would be very difficult for a responsible food business to deny knowledge of the problem. So, should a customer suffer an allergic reaction from eating your food and sue you for damages, it would be difficult for you to claim, as a defence, that you had been exercising 'due diligence' when you served them if you had not made the presence of the allergen known to them.
In Civil law, individual consumers have the right to seek financial redress against you for any injury they have suffered or might have suffered if they had consumed the allergen.
Although as yet there have been no really high profile cases in the UK, damages awarded against restaurants in the US have been very substantial, while the attendant publicity has been considerable.