The EU FIC is enforced in England, Scotland, Wales and Northern Ireland by the Food Information Regulations 2014 (each country has its own version which is the same in most respects). These provide for the declaration of the specified allergenic foods when they are used as ingredients in prepacked, non-prepacked and prepacked for direct sale. The Food Information (Scotland) Regulations (FIR) 2014 revoked regulations implementing the Food Labelling (Declaration of Allergens) Regulations 2008 and provides the powers to requirements contained in the EU Food Information for Consumers Regulation. It is the duty of each food authority within its area and each port health authority within its district to enforce the regulation.
Article 14 of EC Regulation 178/2002 (General Food Law Regulation)
Paragraph (1) prohibits unsafe food from being placed on the market. For the purposes of the Regulation, placing on the market means the holding of food for the purpose of sale, including offering for sale or any other form of transfer, whether free of charge or not, and the sale, distribution, and other forms of transfer themselves. Food is deemed to be unsafe if it is injurious to health or unfit for human consumption, and Article 14 contains provisions for determining whether food falls within this prohibition.
Paragraphs (3) and (4) of this article are particularly relevant:
"(3). In determining whether any food is unsafe, regard shall be had:
a)to the normal conditions of use of the food by the consumer and at each stage of production, processing and distribution, and
b)to the information provided to the consumer, including information on the label, or other information generally available to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods."
"(4) In determining whether any food is injurious to health, regard shall be had:
a) not only to the probable immediate and/or short-term and/or long-term effects of that food on the health of a person consuming it, but also on subsequent generations;
b) to the probable cumulative toxic effects;
c) to the particular health sensitivities of a specific category of consumers where the food is intended for that category of consumers."
Various criteria, have to be considered, including information provided to the consumer concerning the avoidance of specific adverse health effects from a particular food or category of foods (see Article 14(3)(b)); and also the particular health sensitivities of a specific category of consumers where the food is specifically intended for that category of persons (see Article 14(4)(c)). In the context of allergy, this refers particularly to foods sold as free from certain allergens or suitable for people with particular health needs (for example, those people who have coeliac disease). (See section 3.3.2)
Article 16 of EC Regulation 178/2002 (General Food Law Regulation)
This article requires that the labelling, advertising and presentation of food, including the information made available, should not mislead consumers.
These articles are enforced in Great Britain by means of the General Food Regulations No 3279/2004.
It remains widely accepted that individuals who have allergic reactions to certain foods should take care to scrutinise food labels more closely than an average consumer does.
Enforcement
It should be noted that criminal legislation is enforced through local enforcement authorities. It would be prudent for manufacturers to advise their local officers of the management measures they have adopted, to obtain advice on the adequacy of the measures, and to increase the likelihood of the acceptability of such measures as constituting a defence of due diligence, should the need arise. Ultimately, however, in the event of a prosecution the adequacy of a manufacturer's due diligence procedures would be a matter for the Courts.