The FDA’s latest version of its Food Code calls for allergen labeling of “unpackaged” food served at restaurants, delis, and bakeries, among others.
This is a significant step forward in the labeling of Top 9 allergens in the U.S. However, there is a catch.
The Food Code, which the FDA updates every four years, is not federal law, nor is it regulation. It is guidance that represents the FDA’s best advice to ensure that food sold at retail or food service is safe. State, local and federal jurisdictions then choose whether to adopt the Food Code.
In the food allergy community, there is reason to hope for – and to lobby for – widespread adoption of the 2022 version. Released in December, it makes unprecedented strides for food allergy labeling, requiring that consumers are notified in writing of Top 9 allergen ingredients in “unpackaged” foods.
This includes allergen labeling for restaurant meals. As well, it covers food sold in grocery stores’ delis and bakeries, sandwich shops, ice cream parlors, and by caterers and food trucks. The FDA defines these and more as “food establishments.” The 2022 Food Code says that “written notification” of top allergens can be provided on menu statements, websites, placards and decals on cases, among others.
“We look at the Food Code as applying to any place that sells food directly to the consumer,” says Patrick Guzzle, vice president of food science at the National Restaurant Association.
Consumers in states that adopt this updated Code will see its evidence. Take restaurant menus, for instance. A restaurant or deli that sells chicken salad made with egg-based mayonnaise would now have to include language on a menu, website, placard or elsewhere that says “contains egg.”
Reality Check on Implementing
Bakeries that sell items made with wheat, milk or other Top 9 allergens would need to disclose those as well. The guidance applies to both individual bakeries and those housed within grocery stores.
The new allergy provisions are food labeling that allergy advocates, including Allergic Living, have urged for years.
“This is a significant development for customers with food allergies,” says Jeff Hawley, a veteran food safety and regulatory professional in the retail food industry. “Until now, packaged foods had to include information about food allergens. Unpackaged foods, or foods that were packaged in a retail setting – such as a grocery deli counter – did not. This will provide more transparency to consumers.”
Hawley chaired a committee that advised FDA and recommended this change to the Food Code. “The new section of the Food Code expands the scope of required allergen notification because it now includes unpackaged foods.” The packaged food labeling law FALCPA (Food Allergen Labeling & Consumer Protection Act), does not require labeling of these foods.
While this seems to bode well for the food allergy community, there are several shortcomings to consider.
First, states have discretion. Forty-nine states have adopted some version of the Food Code. They are not required to update their Code when FDA releases a new version.
According to an article in Food Safety Magazine, as of 2021, 18 states had adopted the 2017 version of the Food Code. Sixteen states were still using the 2013 version, and the rest were using older versions. South Dakota is the state with the oldest Code – the 1995 version. To put it another way, only 43 percent of Americans live in a state that adopted the most recent version.
Food Code: Patchwork of Variation
Each state has an individual approach to regulating retail food and food service. Guzzle notes there are usually several years between the time that the FDA issues an updated Food Code and its adoption by a state.
“But while that lag happens, many restaurants will update their policies to comport with the 2022 Food Code to get ready.” The Restaurant Association is meeting with its members soon to discuss the 2022 Food Code and hear the industry’s perspective.
There is another bright spot of likely compliance. Hawley has observed that retailers operating in more than one state tend to standardize processes to comply with the state following the most recent or stringent Food Code. This is simpler than having practices that differ among states.
There’s quite a bit of variation in, not just which Code version a state implements, but which parts. “When states adopt the Food Code, they can choose which version and they have discretion to ignore or omit specific sections of the Code,” says Hawley. “They can also add components that may be unique to that state. For example, North Carolina added a section of their code to cover barbecue pits.”
This means that a state could adopt the 2022 Code but omit the new areas of allergy labeling. When states update their retail food service rules, most will use the Code as a model, with modifications based on input from local stakeholders.
‘Written Notice’ Limitation
While the 2022 Food Code brings new allergen transparency, even that has a shortcoming. The food establishment would be required to list allergens in writing using “any method of their choice.” But only one method is required. This may mean an allergen could be disclosed on a printed menu but not on a website menu, for example.
Listing allergens in writing in only one medium is a concern, says Guzzle. “But many restaurants will take the extra step and include that in an online menu ordering format as well as a sit-down menu.”
“No restaurant operator wants to be responsible for someone experiencing an illness, be it an allergic reaction or a foodborne illness,” he says.
The new regulations only address intended ingredients in food, not the risk of allergen cross-contact. Similar to packaged foods, food retailers are not prohibited from broad and unregulated cross-contact warnings on their displays.
Advocating for ‘Unpackaged’ Labels
Local advocacy will be vital to seeing the 2022 Food Code advances implemented. Since states differ on how they update their food codes, if food allergy families want to see these updates made, they have to find out how it’s done where they live.
“Advocacy is first about educating yourself,” says Joey Salmingo, founder of the FATE Initiative (Food Allergy Training and Education). His sister Joanna Salmingo died of an anaphylactic reaction after she ate mochi balls that weren’t labeled for her nut allergens. She’d bought them at a self-serve mochi bar at a Whole Foods Market outlet, just north of Toronto.
Similarly, Landon Wood, lost his life at the age of 11, to an unlabeled cookie from a Tennessee grocery store. It turned out to contain tree nut, to which he was allergic. Well-known in the allergy community, young Oakley Debbs died of anaphylaxis after eating cake containing walnut. Less known is that the cake wasn’t labeled. It was part of a gift box, so considered an “unpackaged” food.
The impact and importance of labeling unpackaged food is hard to overstate.
Salmingo, whose expertise is in the food and hospitality industry, encourages people who are concerned about this issue to “talk to your representatives. Find out how to influence their decision.” But he also urges speaking to those you know in restaurants and retail. Make sure they’re educated on allergies and adopt unpackaged labeling – no matter what state law requires.
Salmingo worked with food safety executives at Whole Foods after Joanna’s death to change the way they label allergens. For instance, avoiding the use of blanket food allergy disclaimers, which didn’t make actual ingredients clear.
Speaking Up for Food Code
The United Kingdom has gone steps farther than the FDA Food Code with the passage of Natasha’s Law. It requires, by law and nationally, that food businesses label all food ingredients on unpackaged food. The law followed the death of 15-year-old Natasha Ednan-Laperouse, who ate a deli sandwich that included sesame, one of her allergens. When she bought the sandwich, sesame was not listed among ingredients on a label. But it was in the food.
Hawley has concerns that some industry groups may oppose adoption of the new Food Code, specifically the guidance on allergen labeling. For some, it is cumbersome to implement.
At the state level, the voice of food-allergic consumers will be critical. They will need to press food safety regulators on why the 2022 Food Code represents a great improvement in food allergy safety. As we’ve seen, labeling unpackaged foods for allergens is essential. It’s a step that can and will save lives.
Contributor Jen Jobrack is an expert on food allergy policy, and the founder of Food Allergy Pros.
Natasha’s Inquest: Why It’s Time for Allergen Transparency
When Food at the Grocery Store Isn’t Labeled for Allergens
Allergy Death Lawsuit: Should Bakeries Have to Label?
What Restaurants Get Right and Wrong on Food Allergies