People with food allergies depend on the ingredient labels of grocery products for accurate and complete information as part of their allergen avoidance strategies. But there are gaps in the rules and regulations pertaining to labeling of foods, and shoppers are often surprised to learn that they don’t apply to all items sold within a grocery store.
Labels on packaged items on a supermarket shelf must follow the Food Allergen Labeling and Consumer Protection Act (FALCPA). This key law requires that foods or ingredients that contain a “major food allergen” be specifically labeled with the name of the allergen source.
But according to the U.S. Food and Drug Administration, this is not true for all foods. “There is a difference when a store employee puts food into a container after a customer has ordered it, such as putting a sandwich into a box for takeout,” an FDA representative explained to Allergic Living.
“This isn’t considered ‘packaged’ food under Section 3-602.11 of the FDA Food Code, so no labeling is required unless state or local laws require it,” she said. “In this situation, the customer can ask about allergens and ingredients when they place their order. The store employee then has direct control over the food from the time the customer orders it to the time the customer receives it.”
Moves to Improve Allergen Statements
There are efforts underway at the federal level to improve allergen labeling for foods that are sold as not prepackaged. The Conference for Food Protection (CFP) is a nonprofit organization that meets every two years and brings together representatives from the food industry, government, academia and consumer organizations to address emerging issues of food safety. The CFP formulates recommendations, which the FDA can accept and use in updates of the Food Code. (The Food Code provides a technical and legal basis for government levels to use in regulating grocery stores and restaurants.)
Jeff Hawley, chair of the CFP’s allergen committee and the Food Safety Manager of Harris Teeter Supermarkets, discusses with me on Allergic Living’s Talking Food Allergy podcast that the conference will this summer consider several issues that would improve allergen labeling at groceries and delis.
Currently, self-serve foods, such as those in bulk dispensers or roll or bread bins, must bear ingredient information under the current Food Code, but are not required to call out major allergen information (for example, including a “contains” statement). Foods served from behind the counter, such as by a bakery or deli clerk, currently are not required to bear either ingredient or allergen information.
At the coming August 2021 meeting, Hawley tells the podcast that the allergen committee will present to the full CFP “a recommendation that all food establishments will have to notify customers of the presence of major food allergens as ingredients in unpackaged food items using brochures, deli case or menu notification, label statements, placards or other effective written means.”
He says where currently there is a patchwork of a small number of jurisdictions having such rules, this will “level the playing field.”
Lack of Allergen Info and Tragedies
This would be welcome news to food allergy consumers. A lack of label information on food not considered “prepackaged” has even been implicated in tragedies, such as the 11-year-old Alabama boy who died of a nut-allergic reaction in 2014. He’d eaten an unlabeled cookie, which his mother bought directly from a grocery bakery case. In 2018, Joanna Salmingo died of anaphylaxis after eating mochi dessert purchased from a display that showed a blanket “may contain” warning for top allergens – but did not mention cashew milk as a key ingredient.
The U.K. has moved to far more comprehensive labeling at deli and bakery counters following the coroner’s inquest into the death of teen Natasha Ednan-Laperouse. Her cause of death was anaphylaxis triggered by a deli sandwich that mentioned some ingredients, but not sesame, to which she was severely allergic.
Until changes are considered in the U.S., and one hopes, put in place, it’s critical that people living with food allergies be aware of what foods are not required to be labeled. Do use that awareness when making choices about what to purchase and consume.
Jen Jobrack, founder of Food Allergy Pros, is the host of Allergic Living’s Talking Food Allergy podcast.