Using the term ‘gluten free’ or ‘no gluten containing ingredients’ – the Legal Implications

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March 17, 2014

Using the term ‘gluten free’ or ‘no gluten containing ingredients’ – the Legal Implications

The introduction of the new EU Food Information Regulations 1169/2011 on 13 December 2014 will have an immense effect on both the hospitality industry and in turn on customers with food allergies or intolerances.

Caroline Benjamin, Consultant, Food Allergy Training Consultancy examines the issues, problems and opportunities surrounding use of the terms ‘gluten free’ and ‘no gluten containing ingredients’ for food service operators who must manage and deliver customer demands and expectations.

Gluten free menus

Big companies have been jumping on the band wagon stating they provide for the gluten free and or dairy free customer, but are they getting it right?  Is it okay to move items from their standard menu to a special menu without any prior thought and, when companies provide special menus, are staff educated on how to manage their customer’s requests and expectations?

Larger chains provide gluten free information and have policies on their websites; however, this information is not always accurate and can be supplied by their marketing team who do not have the correct knowledge to provide this detail.  The policy on the website can sometimes be a ‘tick in the box’ exercise: from personal experience, more often than not the staff, including managers, are not always trained to understand their own allergy policies.

SME businesses tend not to have a separate menu but adapt existing items from their main menu to order, as they have more flexibility enabling the kitchen to manage requests which are not of the ‘norm’.  But should providing for the coeliac customer become the norm?  The EU legislation FIR 1169/2011 will go some way to put practices into place where the customer will be provided with information to make an informed decision as to where they can eat out safely ,  ensuring  businesses provide this information as the ‘norm’.

Gluten free labelling

Current Gluten free labelling legislation Regulation EC 41/2009 was published in January 2009 and came into full effect on 1 January 2012.  The regulation stated that to claim a dish was ‘Gluten Free’ the dish should contain less than 20mg / Kg and to state ‘Very Low  Gluten the dish should contain less than 100mg Kg.  To ensure that businesses comply with the regulation they should be able to provide due diligence to the content and the procedures taken to prepare a safe finished product.

If dishes are prepared in a kitchen which does not use gluten or does not  use gluten containing products, and steps have been taken to stop cross contamination,  then testing is not always required, menu items could then be  labelled “NGCI – No Gluten Containing Ingredients”.

However if a kitchen area is used for both gluten containing and gluten free products then swab testing may be advised as appropriate. Depending on the level of risk, hazard analysis should be undertaken to ensure that all risks of cross contamination within the kitchen can be minimized or eliminated.

As of 20 July 2016, the regulation EU No 41/2009 will be repealed, and become part of FIR 1169/2011: we are waiting for the European Commission to make further rules relating to information on the absence or reduced presence of gluten in food.  The exact details have yet to be defined, but the current limit requirements for gluten free and Very Low  Gluten will remain in place until July 2016.

EU Food Information Regulations (FIR) 1169/2011

EU FIR, coming into force on 13 December 2014, will require all catering establishments to signpost in writing  the availability of allergen information, which includes gluten containing cereals.

The specific information can be given orally by the server, the details supplied will need to be clear and consistent, and additional back up information needs to be available on request.

Based on this remit standardised recipes and products will need to be in place and folders containing this information readily available, either in hard copy or possibly online.  Have you contacted your supplier to understand how you are going to capture this information?

The current legislation however does not cover unintentional allergens, (cross contamination).  However, the FIR has an article which will include an option to introduce a rule in the future on the risks of cross contamination once more research on thresholds has taken place.

Communicating the risks on cross contaminating can be seen as a positive

Establishments should be aware that those persons suffering from coeliac disease or a gluten intolerance want to understand the risks of cross contamination within your venue, a blanket statement “all dishes may contain gluten”, even when the possibility of contact is negligible, is not helpful.

Having an allergy policy which states the best practices within your business will give reassurance, and in turn communicating this information will show that your business is willing to accommodate the coeliac customer and enable them to assess the risk and order as appropriate.

A statement such as “Please ask us about the steps we have taken to minimise cross contamination with gluten containing foods” is a very strong and positive one.

Allergen Charts are available!

Charts are often available on the website or at the venue, most restaurants provide these with pride, however to the coeliac or allergy customer they can be a negative, as they contain a lot of red indicating what is NOT available, and normally a magnifying glass is required to read the small print.

From experience, many staff do not understand the charts and establishments vary how the information is supplied so as a customer educating yourself to understand the chart can be very time consuming!

Increase your customer base by extending your menu to the coeliac customer

Gluten free provision within the food service industry is estimated to be worth £100 million: with the addition of other allergies, this could double if the hospitality industry is willing to take on the challenges which exist for this customer type.

Lack of choice is currently an issue when eating out

The lack of choice on menus is an irritation for the coeliac customer: sometimes many trips to and from the kitchen are required to understand what is available, and then only to be told “we can supply a baked potato” or “we have fruit salad”  – and for this we should be grateful!  After she was continually served melon as a starter and fruit salad as a dessert, Carly Talbot, a Gluten free blogger set up “Fruit is not a pudding” a site which promotes great ideas for gluten free desserts – take a look to find inspiration.

Using the term ‘gluten free’ or ‘no gluten containing ingredients’ – the Legal Implications

Adapting your menu

By making a few changes to your menu, availability can be extended to a greater range of customers.  Just by ensuring a policy is in place for separate fryers for chips will bring a smile to many coeliac sufferers. For example:  if you serve burgers, check they are  100% beef, and highlight on your menus, gluten free with NO bun, to avoid confusion!  Little bits of information like this can alleviate the fear of eating out for the coeliac sufferer.

If you have issues in your kitchen on cross contamination ambient products are available, companies like Ilumi provide an ideal solution for the caterer and give the coeliac customer a safe option and a choice.

Be innovative with your desserts and if you are not able to prepare on the premises take a look at suppliers like Almondy (see picture above) & 3663, who have a great range of delicious gluten free desserts which are gaining in popularity and can be served after defrosting for a short period of time, preventing wastage. Many guests would not even guess they were any different to the norm!

Massive opportunity for pubs, hotels, restaurants and cafés

Andrew Ely, Managing Director of Almondy, says,

The gluten-free market is growing rapidly, and more people are buying gluten-free products more than ever before, and yet in terms of foodservice demand is outstripping supply. There’s a massive opportunity for pubs, hotels, restaurants and cafés to profit, especially when you factor in that 36% of people would be willing to pay more for a gluten-free option.”

It’s not just the gluten-intolerant customers that operators could be missing out on, Andrew adds:

You wouldn’t ignore the vegetarian market and the same goes for gluten free: 73% (+4%) of respondents said they would be guided by the needs of a gluten intolerant friend on where to eat. This means operators could be missing out on entire dining parties not just people with gluten-intolerances. With such a high demand, caterers not taking steps to incorporate gluten free dishes could be losing out many times over!

Prosecutions relating to gluten free labelling have taken place!

Prosecutions in 2013 by Portsmouth Environmental Health Officers relating to ‘selling food not of the nature and quality demanded’ in relation to gluten free menu labelling has raised the awareness in providing for the coeliac customer.   Jamie’s Italian, Gun Wharf was fined and paid costs totalling £17,000, and Abarbistro, Old Portsmouth were given a 3 month conditional discharge.   These situations arose due to either a lack of staff training or miscommunication between the customer, waiting staff and kitchen as to what was requested and then provided by the establishments.

Avoiding prosecution

Nicola Hutchins of Blake Lapthorn solicitors says:

Business owners and their staff should be ready to quickly and accurately answer questions on which allergens are present in the dishes on offer. It will be necessary to have a list of ingredients for each menu item at hand to ensure that the information is readily available and for the staff to be well trained in interpreting that information, establishing the customer’s needs and communicating that accurately with the kitchen.

“Businesses should always be ready for the possibility that they may be inspected by their local Environmental Health officers – and failure could carry a fine of up to £5,000 per offence. Perhaps more worryingly, they leave themselves open to civil legal action if they serve up food containing allergens to an allergy sufferer who has asked for information about ingredients and has ordered in reliance of incorrect information.

“Business owners who are unsure about the rules and how they might be affected should make sure they take advice well before they begin to be enforced in December to ensure they are compliant with the new regulations.”

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