Accident in a Public Place: Food poisoning claims*

Food Information for Consumers

High Stakes for Irish Food Producers and Retailers 

Most of the food safety legislation that applies in Ireland originated from the European Union (EU). In 2011, the EU enacted EU Regulation 1169/2011 (FIC Regulation - Food Information to Consumers) to give consumers a higher quality and scope of information about the food and drink they purchase. The FIC Regulation introduced detailed, wide-ranging requirements for food products that EU member states must fulfil. In Ireland, this regulation is enforced by the Food Safety Authority of Ireland (FSAI).

An estimated 3 percent of people in Ireland have a food allergy. Symptoms of contact with an allergen can vary, but typical ones include itching (eczema), hives, asthma, runny nose (rhinitis), stomach pain, and facial swelling. In the most severe cases, a person may enter anaphylactic shock, which can be life-threatening. According to an FSAI study, just over 100 instances of food-related anaphylaxis requiring hospitalisation occurred in Ireland in 2017.

FIC Regulation for Allergens

FIC Regulation requires food producers to declare the presence of 14 of the most common food allergens, including cereals containing gluten, such as wheat, rye, barley, and oats; crustaceans—crabs, prawns, and lobsters, for example; eggs; fish; nuts ; soybeans; milk; celery; mustard; sesame seeds; molluscs—mussels, oysters, squid, and snails, for example; and sulphur dioxide/sulphites (a common  preservative).

These food allergens must be highlighted clearly on the ingredients list of the product in terms of font, style, background, and colour. In practice, many food producers include them in bold and often specifically state the allergens in the given product, or potential allergens if cross-contamination could occur because the food producer manufactures other products containing such allergens. For labelling, the FIC Regulation also requires use of the term “may contain” for allergens and also closely regulates use of the term “free from” in relation to certain allergens. 

This requirement extends to food sold to consumers that is not prepacked. In Ireland, information must be provided in writing at the time of sale, supply, or presentation. This means all restaurants, cafes, delis, takeaways, market stalls, and any other outlet serving non-packaged food must provide customers with accurate written information about allergens in any given product.

A noticeable provision of the FIC Regulation is that it applies to all information provided to consumers on food, irrespective of how that information is delivered. Accordingly, all information on food products—even outside the label—falls under the FIC Regulation, including information online, in adverts, on social media, in a shop window, on menus, on the side of a truck, etc. A product’s label may meet all requirements, but the producer must ensure all other information about the product complies with the rules.

Practical Implications for Consumers and Producers

These measures may seem quite onerous on food producers, but the effect of illness due to food allergens on susceptible consumers can be very serious—and even fatal, in certain circumstances. Indeed, a food producer in breach of the FIC Regulation may face fines from the HSE, as well as restrictions on the relevant product. 

In December 2016, Largo Foods, producers of the popular Tayto and O’Donnell crisp products, were fined €2,000 by the HSE after a factory malfunction caused a gluten-free crisp production line to be contaminated with gluten, leading to an 11-year-old boy with coeliac disease suffering an allergic reaction and illness. The HSE also implemented corrective actions for the production lines of the company. These had been carried out and approved by the HSE prior to the District Court hearing.

When a consumer suffers illness due to an allergic reaction to food, they may be entitled to a civil claim for compensation, particularly in circumstances where the necessary allergen information was not provided, or where they relied upon misleading allergen information that was provided. As in any legal case, causation is important (i.e., proof the product or food caused the allergic reaction), so it will be necessary to provide evidence of a product label or menu. Equally, it may be necessary to send a sample of the food in question for testing. It is advisable to report the issue to the FSAI at an early stage, so it can investigate the source of the issue and take appropriate actions to safeguard the wider consumer community.

In 2019, the FSAI’s Advice Line dealt with more than 3,460 consumer complaints, with the number of reports relating to non-display of allergen information up a substantial 25 percent from 2018. If the FSAI is satisfied a complaint is warranted, it will issue a food alert or a food-allergen alert regarding the possible risk posed by a particular food product to consumers with food allergies or food intolerances. In 2019, the FSAI dealt with 679 food incidents, resulting in 107 food alerts and food-allergen alerts being issued.

Conclusion

The EU introduced the FIC Regulation to provide more and better information for customers to inform their choices. The benefits of informed consumer choices are clear, especially for consumers who suffer from food allergies. Such consumers should always be conscious of what they order, but these rules certainly put the onus back on food producers and providers to ensure the consumer receives all necessary information—particularly allergen information. This regulation is strictly enforced in Ireland, appearing to flip the age-old legal principle of “caveat emptor” (“let the buyer beware’) on its head. 

 

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement

Ed Kelly, Solicitor
Ed Kelly, Solicitor
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