Enforcing the law on allergens In this feature l food allergens l enforcement l FIRs Faster food action The death of Paul Wilson after eating a supposedly nut-free meal has highlighted enforcement limitations faced by trading standards when it comes to tackling breaches of allergens legislation. Carina Bailey reports A trading standards officer is calling for a change in the law or more national guidance on enforcing current legislation on allergens after a landmark prosecution of a restaurateur. Last month, Mohammed Zaman was found guilty at Teesside Crown Court of manslaughter through gross negligence following the death of Paul Wilson, 38, of Helperby, North Yorkshire, who died after eating a chicken tikka masala takeaway on 30 January 2014. Zaman was sentenced to six years in jail. The meal, which Mr Wilson had been told was nut-free, contained a peanut powder, used as a thickening agent, rather than almonds as was stated on the menu of the Indian Garden restaurant in Easingwold. The substitute ingredient had been introduced in June 2013, in an attempt by Zaman to cut costs. Mr Wilsons death was made all the more tragic after it was revealed, under cross-examination in court, that Zaman had not only received a number of complaints from people suffering problems with their lips when eating meals from his restaurants, but also that a formal complaint had been made to North Yorkshire Trading Standards (NYTS) just seven days before the fatality occurred. The case The first NYTS knew of an allergen problem at one of Zamans restaurants was on 20 January 2014, when the mother of a teenager who had suffered a serious allergic reaction on 3 January made a I dont think we have got powers to seize a product, because, clearly, peanuts are not dangerous in themselves Andy Robson TAP TO NAVIGATE PAGES 1 Credits 2 3 4 5 6 7 To share this page, in the toolbar click on Carina Bailey is the editor of TS Today. Images: Kondor83 / Shutterstock complaint. The teen had to be injected with adrenaline by medics for anaphylactic shock after eating a meal from another of Zamans restaurants, the Jaipur Spice, also in Easingwold. On 23 January, three days after the complaint had been made, NYTS visited the premises to conduct a test purchase and food sampling. The peanut-mix substitution was discovered and Zaman was told he must make customers aware that peanuts were being used. The fatality happened 11 months before the Food Information Regulations (FIRs) which require food businesses to provide their customers with allergen information came into force. After Mr Wilsons death, the matter became a police investigation, and NYTS assisted them with their enquiries. As part of this, a second undercover test purchase was carried out at Indian Garden on 1 February 2014 and the restaurant failed. Trading standards powers Rob Blacklock, divisional officer at NYTS, has been investigating whether trading standards powers are sufficient for allergens: I have come to the conclusion, through the case, that if we went in and thoughtthe business was not able to control allergens, we would want to do a progressive implementation of powers [rather than close the business down]. Blacklock has investigated the possibility of using a hygiene emergency prohibition notice to close a business. These are enforceable where there is an imminent risk of injury to health, either because of the condition of the premises or because of an activity being carried out. However, while hygiene prohibition notices can be used for hygiene purposes, allergens arent regulated under them. You cant really drag an allergen issue into hygiene regulations, Blacklock says. Everything has to be progressive and proportional, he adds. Shutting down a business might cost your authority in compensation if the business wants to appeal the notice. Whether we need that power is up for debate, and its probably the last of last resorts. Its something that would be desirable, but not the first line of action. Andy Robson, head of farming, food and health at NYTS, says its a matter of balance when it comes to tackling issues surrounding allergens. Were talking about a relatively small proportion of the population [who suffer allergic reactions]. Would it be an overuse of powers [to shut down a business] to achieve an outcome? Would it be physically possible? What would that entail? He wonders whether a temporary, official notice, sanctioned as an Emergency Notice displayed in the shops or catering establishments window stating that the business isnt able to supply a nut-free or allergen-free meal displayed in the shops window might be a better way to approach it. Blacklock agrees because of the seriousness of cross-contamination and how little is known about its prevalence in commercial kitchens. After Mr Wilsons death, the restaurant voluntarily surrendered the peanut mix to NYTS. However, food sampling revealed that contamination with other ingredients was still high enough to send someone into an anaphylactic shock. The police wanted to shut them down, but I said we didnt have the powers to do that, says Blacklock. I dont think we have got powers to seize a product either because, clearly, peanuts are not dangerous in themselves. Its only if youre using them in an inappropriate manner that it becomes a problem. One peanut speck 5mg/kg is enough to put someone into anaphylactic shock, says Blacklock: If you were to weigh it out, it would be less than a pin head. Its only a very small proportion of the population thats affected, and businesses could go for years without having any incident whatsoever, despite cross-contamination being present throughout their products. Traditionally, a chef uses the same spoon in different pots of ingredients to make up a meal, which contaminates the next ingredient. It boils down to whether a business is able to get those allergens under control or not. If it cant, the question then is whether other steps need to be put in place to prevent a fatality. Blacklock suggests analysis is needed to discover the prevalence of cross-contamination in commercial kitchens, but admits it would be a costly investment to make. Lindsey McManus, deputy chief executive of Allergy UK, says the FIRs are only about providing the right allergen information they do not state what facilities a business should have. She describes the regulations as a first step: They do go a long way to addressing peoples needs but I think they will need to be reviewed probably in four or five years. Theres always that risk that there may be cross-contamination, even in the very best restaurants for most people with food allergies, that should be an informed risk. McManus agrees that an analysis of cross-contamination in commercial kitchens would be mammoth and costly but she believes enforcers would be best placed to carry it out. Eventually, she adds, training on allergens for employees of food businesses will have to be considered, but this would be complicated by the quick turnover of staff in the restaurant business, and the fact that English isnt always their first language. Law change According to Blacklock, a change in the law needs to be considered or, at least, further national guidance on a progressive way for enforcers to deal with the allergen issue. The problem with allergens, he says, is that businesses have been advised that they cant really turn customers away. And if a customer says I dont want that in my food, I want it taken out the business doesnt know the risks associated with crosscontamination. Most of them are ignorant as to the levels that can cause a problem. At that stage, they should be advising that they probably cant serve the customer anything because they have used peanuts in the kitchen. But the law suggests a business should give them an alternative meal, or attempt to take the peanuts out of the meal. At the time of Mr Wilsons death, Blacklock says the Indian Garden restaurant was within its rights to turn him away if it didnt feel a peanut-free meal could be served. However, since the introduction of the FIRs, he feels businesses dont think they have that option. Blacklock says environmental health officers are advising businesses in North Yorkshire to take simple steps, such as using one spoon per ingredient, to help prevent crosscontamination but before the regulation change in 2014, it was never a hygiene issue. We have an agreement with environmental health that we will look to advise on the FIR requirements and due diligence to control allergens within a business if they [environmental health officers] feel its not under control, Blacklock says. However, businesses arent routinely advised about allergens by NYTS because caterers tend to be low-risk premises according to the food standards risk assessment. Nobody has done inspections to see how prevalent cross-contamination is, says Blacklock. Everybody knows its there, but to what extent or how bad it is we dont know. If peanuts are even just used on site, he adds, cross-contamination is a certainty, and national guidance is sorely needed on how to deal with this in a kitchen. The best advice Blacklock can give at the moment is to use a clean set of equipment to make a peanut-free meal but then, he questions, do you have different kit for every eventuality? You may have multiple sets of equipment just in case somebody says they have got an allergy to X. Simply rinsing equipment wont eliminate cross-contamination either; it needs to be cleaned in an industrial dishwasher at a very high temperature, such as 80C. Blacklock intends to start a discussion with the Food Standards Agency about the issue. Its immeasurably painful to think you have lost your child through an avoidable accident, says Blacklock. If we can stop one death, it will be worth all the work that could be done on this. We have just scratched the surface of whats happening in some of these kitchens. 3 Jan 2014 20 Jan 2014 23 Jan 2014 30 Jan 2014 30 Jan 2014 Teenager suffers an allergic reaction to nuts at Jaipur Spice, Easingwold The first complaint is made to NYTS, about the incident on 3 January NYTS conduct an unannounced test purchase and food sampling. It was found that peanut mix, not almond mix, was being used, and Zaman was told to make customers aware Paul Wilson dies after eating a meal from Indian Garden, also owned by Zaman NYTS begin helping North Yorks police with their enquiries 23 May 2016 May 2016 21 Jan 2015 1 Feb 2014 31 Jan 2014 Zaman sentenced to six years in prison Trial begins. Three NYTS officers give evidence NYTS lays six food offences against Zaman Undercover test purchase by NYTS at Indian Garden, which the restaurant fails NYTS continues to advise Zaman that he cant sell products using peanuts