The FDA’s latest version of its Food Code requires allergen labeling of “unpackaged” foods served in restaurants, delis, and bakeries, among others.
This is a significant step forward in the labeling of the top 9 allergens in the US However, there is a catch.
The Food Code, which the FDA updates every four years, is not a federal law or regulation. It is a guide that represents the best advice from the FDA to ensure that food sold at retail or in 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 lobby for, widespread adoption of the 2022 version. Released in December, it makes unprecedented advances for food allergy labeling, requiring consumers to be notified by written about the top 9 allergenic ingredients in “unpackaged” foods.
This includes allergen labeling for restaurant foods. In addition, it covers food sold in grocery stores and bakeries, sandwich shops, ice cream shops, and catering services and food trucks. The FDA defines these and more as “food establishments.” The 2022 Food Code says “written notice” of major allergens can be provided on menu statements, websites, signs and box stickers, among others.
“We believe the Food Code applies 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 your evidence. Take restaurant menus, for example. A restaurant or deli selling chicken salad made with egg-based mayonnaise would now have to include language on a menu, website, sign, or anywhere else that says “contains egg.”
Implementation Reality Check
Bakeries that sell items made with wheat, milk, or other Top 9 allergens should also disclose them. The guidance applies to both individual bakeries and those within grocery stores.
The new allergy provisions are food labeling that allergy advocates, including Allergic Living, have recommended for years.
“This is a significant advance 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 deli counter, did not. This will provide more transparency to consumers.”
Hawley chaired a committee that advised the FDA and recommended this change to the Food Code. “The new section of the Food Code expands the scope of required allergen notification by now including unpackaged foods.” The Food Allergen Labeling & Consumer Protection Act (FALCPA) 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 the FDA publishes a new version.
According to a Food Safety magazine article, 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: variation patchwork
Each state has an individual approach to regulating food and retail food service. Guzzle notes that it typically takes several years between the time the FDA issues an updated Food Code and its adoption by a state.
“But while that delay occurs, many restaurants will update their policies to comply with the 2022 Food Code to prepare.” The Restaurant Association will be meeting with its members soon to discuss the 2022 Food Code and hear the industry perspective.
There is another bright spot of probable fulfillment. Hawley has observed that retailers that operate in more than one state tend to standardize processes to comply with the state by following the most recent or strict Food Code. This is simpler than having practices that differ between states.
There is quite a bit of variation, not only in which version of Code implements a state, but also in 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 to its code to cover grills.”
This means that a state could adopt Code 2022 but omit the new allergy labeling areas. 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 its choice.” But only one method is required. This may mean that an allergen might show up on a printed menu but not on a website menu, for example.
Listing allergens in writing on only one medium is a concern, Guzzle says. “But many restaurants will go a step further 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 getting an illness, whether it’s an allergic reaction or a foodborne illness,” he says.
The new regulations only address the intended ingredients in food, not the risk of allergen cross-contact. Similar to packaged foods, food retailers are not prohibited from displaying broad, unregulated cross-contact warnings on their displays.
Advocate for ‘unpackaged’ labels
Local advocacy will be vital to seeing the 2022 Food Code advancements implemented. Since states differ in how they update their food codes, if families with food allergies want to see these updates, they should find out how it’s done locally. where they live.
“Advocacy is first about educating yourself,” says Joey Salmingo, founder of the FATE (Food Allergy Training and Education) Initiative. His sister Joanna Salmingo died of an anaphylactic reaction after eating mochi balls that were not labeled for their nut allergens. He had bought them at a self-serve mochi bar at a Whole Foods Market store 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 that it contained tree nuts, which he was allergic to. Notorious in the allergy community, young Oakley Debbs died of anaphylaxis after eating a cake containing nuts. Less well known is that the cake was not labeled. It was part of a gift box, so it was considered an “unpackaged” food.
It’s hard to overstate the impact and importance of labeling unpackaged foods.
Salmingo, whose background is in the food and hospitality industry, encourages people concerned about this issue to “talk to their representatives. Find out how to influence your decision.” But he also urges talking to the people he meets at restaurants and retail stores. Make sure they are aware of allergies and embrace no-package 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 example, avoid using general food allergy disclaimers, which do not clarify the actual ingredients.
Speaking for the food code
The UK has gone beyond the FDA Food Code with the passage of Natasha’s Law. Requires, by law and at the national level, that food companies label all food ingredients in 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 as an ingredient on the label. But it was in the food.
Hawley is concerned that some industry groups may oppose the adoption of the new Food Code, specifically the guidance on allergen labelling. 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 vast improvement in food allergy safety. As we have seen, it is essential to label unpackaged foods to detect allergens. It is a step that can and will save lives.
Contributor Jen Jobrack is a food allergy policy expert and founder of Food Allergy Professionals.
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