New plain English allergen labelling requirements appeal

What you need to know 

• On 25 February 2021, the Australia New Zealand Food Standards Code was amended to introduce new requirements for the labelling of allergens in food.
• The changes aim to make allergen information on food labels clearer and more consistent through the use of simple, plain English allergen declarations in a specific format and location on food labels.
• Food businesses have until 25 February 2024 to transition to the new allergen labelling. There is a further two year stock-in-trade period for food labelled with existing allergen declarations before the end of the transition period.

What you need to do

• Food businesses should review their current labelling to assess what changes will be required to comply with the new requirements by the end of the transition period.
• Food businesses selling food products in other countries as well as Australia should be aware of any inconsistent allergen labelling requirements and may need to use different labels for the Australian market.

Australia's high rate of food allergies

According to Allergy & Anaphylaxis Australia, Australia has the highest incidence of food allergy in the world and food allergies are growing at a rapid rate. It is estimated that one in every ten babies will develop a food allergy (www.allergyfacts.org.au).

The labelling of allergens on food and the provision of clear, consistent and accurate information about the presence of allergens in food is therefore very important to assist consumers with allergies and carers who purchase foods for others with allergies to make safe food choices.

Allergen declarations required under the Code

Standard 1.2.3 of the Food Standards Code requires the presence of certain foods and ingredients which can cause severe allergic or other adverse reactions to be declared on food labels. These foods include: peanuts, tree nuts, sesame seeds, milk, eggs, fish, molluscs, crustacea, soy, lupin, wheat, gluten-containing cereals and sulphites.

Up until recently, however, the Code did not mandate how these allergen declarations should be made or what terminology should be used when making the declarations. The lack of clear rules has led to inconsistencies and ambiguity in how allergens are described and declared on food labels, causing uncertainty for food businesses and making it difficult for consumers with food allergies and carers to easily find and understand allergen declarations, and even more so for purchasers who do not have English as a first language.

Plain English Allergen Labelling

In our article "Changes to allergen labelling requirements in Australia and New Zealand" published in our 12 September 2018 edition of Food Law Update, we reported about Food Standards Australia New Zealand's (FSANZ) plain English allergen labelling (PEAL) review.

The PEAL review considered a proposal (Proposal P1044) to make mandatory allergen labelling clearer and more consistent through the use of plain English allergen labelling, in particular by simplifying the descriptions used for allergens and requiring a summary statement listing allergens.

Amendments to the Code – new allergen labelling

The new changes to the Code that commenced on 25 February 2021 implement the recommendations from Proposal P1044 with the aim of providing clearer and more consistent labelling of allergens in food.

Standard 1.2.3 has been amended to reflect these aims by requiring the following:

• foods required to bear a label must declare allergens in both the statement of ingredients and a summary statement beginning with the word "contains";
• the summary statement must appear on the label in the same field of view and directly next to, but distinctly separate from, the statement of ingredients;
• the "required name" of the allergen, as listed in the table in Schedule 9-3 of the Code, must be used when declaring allergens;
• allergens must be listed separately in the statement of ingredients in respect of each ingredient that is or contains the allergen. For example: maltodextrin (wheat), pasta (wheat, egg); milk powder, sesame seeds; individual tree nuts must be declared (eg, almonds, hazelnut, walnuts) rather than the general description "tree nuts"; "molluscs" (eg, shellfish, squid and octopus) and "crustacean" (eg, lobster, prawns, shrimp) must be listed separately from "fish";

• the summary statement must list each allergen using the required name and may not contain any other words (eg, allergens that are not a "required name" as listed in Schedule 9-3 may not be listed in the summary statement, even if they are recognised allergens or are required to be declared in other countries);
• the required name "gluten" must be listed in the summary statement if the allergen is wheat (if gluten is present), barley, rye, oats or their hybrids; and
• allergen declarations must be in bold type and in a typeface size no smaller than other text in the statement of ingredients, to make allergens easier to identify.

Food for sale that is not required to bear a label must include the allergen declarations in labelling that accompanies the food or is displayed in connection with the food, or allergen information must be provided to the purchaser on request.

"May contain" statements

It is fairly common for food products to include "May contain" or "May be present" statements about allergens on food labels (eg "may contain tree nuts"). The changes to the Code provide no guidance for the use of these types of statements. These are voluntary statements made by food businesses and are not currently regulated by the Code.

Food industry and consumer groups (eg, the Australian Food and Grocery Council or Coeliac Australia) provide some guidance about the use of "may contain" types of statements and management of allergen cross-contamination. Ultimately though, food businesses must comply with the allergen declaration requirements in the Code, so including a "may contain peanuts" statement, for example, may not assist a food business if the food is found to contain peanuts which have not been declared as an allergen on the label.

Inconsistency with other countries

There are differences with how allergen declarations are required to be made in overseas markets. For example, the European Union requires allergen declarations in the statement of ingredients but explicitly prohibits the use of a summary statement. This is in contrast to the new allergen labelling requirements under the Code which require a separate summary statement.

Submissions on Proposal P1044 from industry groups observed that changes to the Code which are inconsistent with other jurisdictions are likely to lead to difficulties and additional costs if businesses are required to use different labels to meet the differing allergen labelling requirements.

In response, FSANZ observed that, while it had sought to align with relevant overseas allergen labelling regulations, generally there is no consistency in allergen labelling regulation internationally. In making its recommendations in the Proposal, FSANZ was persuaded by consumer evidence which showed that consumers with food allergies prefer to see a summary statement in addition to the statement of ingredients as it reduces the search times for identifying allergens.

Global food businesses will need to be mindful of allergen labelling inconsistencies across jurisdictions and may have to consider different packaging or over-labelling of products being sold in Australia and other jurisdictions (the European Union in particular).

Clear and consistent allergen labelling

Getting allergen labelling right is very important.

In addition to the potentially very serious risks posed to consumers with allergies, incorrect labelling of allergens in food can be costly for food businesses in terms of brand reputation, lost sales and recalls, as well as possible prosecution from food authorities. So far in Australia this year, there have been 15 food product recalls due to incorrect allergen labelling (in most cases due to allergens not being identified on labels). Prosecutions for exposing consumers to allergens are often instituted and will almost certainly be when an undeclared allergen has a serious impact to a consumer's health, and substantial penalties can be levied.

While there will undoubtedly be some challenges for food businesses in implementing the new allergen labelling requirements during the transition period, particularly for food products sold in multiple jurisdictions, it is hoped that the new labelling requirements will lead to clearer and more consistent allergen labelling in the long run to the benefit of both food businesses and consumers.

Authors: Joanna Lawrence, Counsel; and Kellech Smith, Partner.