Allergens – Legal Liability
Death or a serious reaction to the presence of one or more of the named fourteen allergens in food is primarily attributed to the presence of undeclared allergens in food ingredients and not as a result of cross contamination during food preparation.
In the event of an untimely death or a serious reaction occurring in relation to the presence of undeclared allergens in food, a food business operator could present a due diligence defense in a criminal court of law. Such a defense would be based on providing evidence demonstrating precautionary notices such as “May contain allergens” was in place at the time of the incident.
However in Civil court proceedings the burden of proof is based on Tort Law “the balance of probability”. In such cases an effective defense would require much more detailed evidence which would include allergen awareness training for food handlers and allergen risk assessments as possible exposure and an adverse reaction to a food allergen is regarded as a foreseeable risk.
Ref. FSA-Dec 15