Tragedy Showed Dangerous Food Label Loophole: Why It’s Time for Transparency

in Features, Food Allergy, Soy & Seed
Published: October 18, 2018

Natasha Ednan-Laperouse
The September 2018 inquest into the death of a 15-year-old Natasha Ednan-Laperouse marks a turning point in the history of food allergy management and regulation – and not just in England, where she was from, but in many Western countries.

Never again are we likely to look at longstanding loopholes in food allergy labeling laws in the same fashion. We have learned the hard way that while countries enforce laws requiring the labeling of top allergens on “packaged foods,” producers of freshly “pre-packaged foods” are allowed a dangerous exception to the rule.

Whether you’re in England, the United States, France, Canada, or Spain, the legal loopholes give sandwich shops, grocery delis and in-store bakeries the right to forego allergen labeling on or adjacent to freshly packaged foods – even if prepared off-the-premises.

The allergy information missing from the baguette sandwich Natasha ordered could have saved her life. As the inquest heard, the dough of that baguette she purchased from the Pret a Manger sandwich shop at Heathrow Airport contained sesame, to which she was severely allergic. But this fact wasn’t shown on the ingredients sticker that both she and her father read, since Pret was following the “freshly made” food exemption.

London Coroner Dr. Sean Cummings questioned why a large food enterprise like Pret could qualify for such an exemption, noting that it produced food in centralized kitchens with “over 200 million items for sale.” In the wake of Natasha’s tragic experience, England appears likely to show leadership – and soon – to close its loophole.

The inquest also shone a light on the growing incidence of sesame reactivity, and has given a renewed sense of urgency to the lobby to have sesame added to the list of top allergens in the United States. The tiny seed is already on the priority allergen lists in Europe, Canada and Australia. Adding that status in the U.S. would mean it could no longer be a hidden ingredient in packaged foods or disguised by catchall phrases like “natural flavors”.

Natasha succumbed to her catastrophic reaction to her sandwich while aboard a flight to France (she later died in hospital). In the view of Allergic Living, the inquest testimony also revealed the pressing need for generally improved airline readiness for anaphylaxis – from regular training for crews on emergency response protocols to the importance of having epinephrine auto-injectors available in the airplane medical kit.

A Lobby for Labels

With the inquest findings as support, Natasha’s grieving parents are campaigning in England for change to ensure labeling on all sold foods; they want an end to the “freshly made foods” loophole. Natasha’s father, Nadim Ednan-Laperouse, recently told the BBC he wants “to get justice for her death, justice for the future, that no one else should suffer such a needless and pointless death.”

Michael Gove, the British Secretary of State for Environment, Food and Rural Affairs, has spoken in favor of the changes the parents seek, and promised to move swiftly on the coroner’s request that his department take action.

Gove plans to bring food industry representatives and experts together for a review. “This tragic case highlights the importance of acting urgently,” he told a Daily Mail reporter. “We need to be sure that we act quickly so we can ensure we have the best possible protection in place because no one would want anything like what’s happened to Natasha’s family to happen to somebody that they love.”

Since Natasha’s inquest, Pret a Manger is making major changes voluntarily to the way the company labels its freshly packaged foods. The grab-and-go sandwich chain, which has 530 locations in the U.K., says that, starting in November, it will list all ingredients, including top allergens, on fresh foods prepared daily in its U.K. kitchens. The same protocols will be rolled out in Pret’s U.S. locations in early 2019.

During the inquest, a family lawyer called out Pret for the fact that the company had a log documenting a total of 21 allergic reactions to its food in the year before Natasha died in July 2016. Of these cases, nine related to sesame exposure.

One of those affected was New York City resident David Matt, who tried to sue Pret for his reaction to undeclared sesame in a baguette less than a year before Natasha’s fatal reaction. He was devastated to learn of her death recently through media coverage. (See Matt’s story here.) “I hope, unfortunately, this serves as a precedent in the U.S. and around the world,” he says.

Joanna Salmingo
Stories of tragedies and near tragedies related to the “fresh foods” loophole are becoming more frequent. Joanna Salmingo, 30, died in hospital after suffering a severe nut-allergic reaction on Aug. 8 – she collapsed after eating frozen Japanese mochi balls purchased at an in-store display at Whole Foods Market in Markham, Ontario. The display, which fits into the labeling exemption, had a ‘may contain statement’ on a sticker, saying the company “could not guarantee” there were not trace amounts of major allergens in the treats on display.

Joanna’s brother Joey Salmingo believes his younger sister would have ignored the lawyerly statement, and presumed the balls were made in the standard way: with glutinous rice dough covering ice cream. But the balls Joanna purchased contained frozen cashew milk not dairy milk – and she had a known allergy to nuts.

Salmingo, who has begun advocating for better food allergy education, managed to persuade Whole Foods to add labeling – and they’ve recently added full ingredients lists to individual mochi display trays across North America.

In 2015, Allergic Living’s editors had wondered if the “freshly made foods” exemption might be changed in the U.S. – since this loophole was at the center of an earlier tragedy, as well as a lawsuit. Derek Landon Wood, 11, died after eating a chocolate cookie his mother had purchased at Publix Super Market in Tennessee.

The boy’s mother says she was told by a clerk that the cookie did not contain tree nuts, when in fact it contained walnuts, to which the boy was severely allergic. But an undisclosed settlement was reached in the case, so the results of it were not made public – and much-needed change did not occur.

Actions to Support To End Exemptions

In selling fresh food products without ingredient labels, Pret a Manger and other establishments have not been breaking any laws, but the practice can be extremely dangerous, and public awareness of the loophole appears spotty. During the inquest, Allergic Living heard from many readers who had not been aware that a wrapped fresh food purchased at an airport could show ingredient labels that were incomplete – and might not list allergens.

As Gove’s department looks to take action in England, Americans already have draft legislation that they can support – called the Food Labeling Modernization Act, which would require “non-packaged food available for sale at retail” to have adjacent, visible signage with allergens listed. It’s sitting in House and Senate committees, and concerned readers can urge their Representative or Senator to support using a pre-written letter prepared by FARE, the large food allergy non-profit.

Jennifer Jobrack, FARE’s [former] vice president of education, advocacy and strategic alliances, has been involved in this legislation. She says FARE urges people to send a pre-written letter to their senators and House representatives. But in the meantime, she notes that food companies can also simply step up and be transparent about labeling – “even without being told to do so by the FDA.”

Push for Sesame as a U.S. Top Allergen

Photo: Getty
FARE and the Asthma and Allergy Foundation of America (AAFA) are also urging the passage of this legislation for another reason – to finally make sesame the ninth regulated U.S. top food allergen, so that it must be declared on food packages. The push for that status is the other key element in the proposed Food Labeling Modernization Act.
In March 2018, Connecticut Senator Chris Murphy, with the support of a group of Democrat senators, wrote a letter to the FDA asking the agency to mandate the labeling of products that contain sesame. Then in August, AAFA met with the director of the office of nutrition and food labeling at the FDA to emphasize its support for adding sesame as the ninth top allergen.

AAFA is now asking the food allergy community to send the FDA a form if they or anyone they know has had a serious allergic reaction to sesame. [Update: the FDA has now launched a review process of whether to make sesame a top allergen.]

The Numbers on Sesame Allergy

In a 2018 report about sesame allergen labeling titled Seeds of Change, the food safety group the Center for Science in the Public Interest (CSPI) cited a survey of more than 50,000 U.S. households. The survey, conducted by pediatrician Dr. Ruchi Gupta and a team at Northwestern University, ranks sesame as the ninth most prevalent allergen after the eight most commonly diagnosed food allergens. The CSPI report also says more than 300,000 Americans live with a sesame allergy.

Sesame’s inclusion in a food often isn’t obvious. Manufacturers may simply list sesame as a spice, natural flavor, tahini, benne and other names, Jobrack points out. In the bigger picture, “food allergy is a growing public health issue,” notes Jobrack, who says labeling is one of the most frequent topics that FARE hears about from the food allergy community.

Often parents have to phone a customer service line, looking for allergen clarification from a manufacturer. “The more transparent and communicative a company can be about its ingredients, the better off everyone is,” she says.

But in the end, it will be regulation that brings consistency. With Natasha’s inquest as what her father called “a watershed moment,” it is time for the political will to effect change – and for food makers to assist in the effort.

Read more:
FDA Launches Process to Weigh Making Sesame the Top 9th Allergen
Natasha Inquest: Coroner Finds Inadequate Allergy Labeling Led to Teen’s Death
After Tragedy, Brother and Mother are on a Mission for Food Allergy Education