Some thoughts on a recent case from Dan West at HF;
The inquest into the tragic death of Celia Marsh concluded on 22 September 2022 and has prompted calls for more testing at every stage of the food production process and for reform of the precautionary allergen labelling system. Insurers will want to keep a close eye on any developments that emerge, including further reforms of allergen labelling laws.
The facts
On 27 December 2017 Ms Marsh, who was allergic to dairy, consumed a ‘super veg rainbow flatbread’, purchased from a branch of Pret a Manger, whilst shopping with her family in Bath. The product contained a coconut yoghurt dressing which was cross-contaminated with traces of milk protein. Ms Marsh had an anaphylactic reaction and died less than 2 hours after consuming the product, having collapsed in the street.
The coconut yoghurt had been produced in the UK by Planet Coconut under licence from Australian brand CoYo. The yoghurt contained a stabiliser, HG1, manufactured by Tate & Lyle and supplied by CoYo. Planet Coconut says it received assurances that the HG1 ingredient was made in a dairy free environment, but it appears it held documents which made clear the opposite was the case: the HG1 was produced in a factory that also handled milk. (Tate & Lyle gave evidence it had not been asked for the HG1 to be dairy free.) Planet Coconut did not tell Pret that there was a risk of cross-contamination. Rather, Pret says Planet Coconut provided it with assurances the yoghurt was made in a dairy free environment.
The findings
In September, a 2-week inquest into Ms Marsh’s death was conducted by senior coroner, Maria Voisin, at Ashton Court, Bristol.
At the conclusion of the inquest, the coroner concluded that the coconut yoghurt should of course have been dairy free, having been marketed as such, but was not because it had been cross-contaminated at the manufacturing stage.
The coroner ruled that “The manufacturer of the dairy free yoghurt had in its possession documents which flagged this risk, but this risk was not passed on to its customers”, which included Pret.
The coroner made various recommendations including that there should be compulsory testing for any products claiming to be dairy or allergen free; and she intends to write to the Food Standards Agency (the FSA) to raise her concerns about such products.
What this means for insurers
Insurers will already be wary of recent changes made to the law surrounding allergen labelling (for food packed on site) following the death of Natasha Ednan-Laperouse in 2018, which arose from similarly tragic circumstances. In a similar vein, Ms Marsh’s death has prompted calls (including from the coroner and her husband) for more testing at every stage of the production process and for reform of the precautionary allergen labelling system, to provide a safety net for those suffering from allergies.
Coincidentally, the FSA closed its consultation on precautionary allergen labelling in March this year. That consultation was prompted by concerns that there was a lack of clarity on the rules for notifying customers of a risk of unintentional allergen cross-contamination. In particular, it has become standard practice for food business operators, in an effort to protect themselves, to routinely provide warnings stating that a food item ‘may contain’ a certain allergen or that the absence of an allergen cannot be guaranteed, even where there is no such risk.
But this precautionary approach has created issues whereby consumer choice has been limited and genuine warnings have been devalued. It may even be possible this type of thinking played a part in Planet Coconut’s decision to overlook the warnings provided by Tate & Lyle. The FSA wants to set out an approach which provides better information to consumers whilst remaining proportionate for food businesses.
Whilst we await the FSA’s findings, insurers may want to ensure their food business operators take heed of the circumstances surrounding Ms Marsh’s untimely death and consider auditing supply chains as well as introducing sample testing, to validate the absence of allergens. Insurers may also wish to keep a close eye on any impending changes to the rules concerning precautionary allergen labelling and how this may change the risk profile of some of their policyholders.
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