Will you need to comply with the Plain English Allergen Labelling requirements?

By John Thisgaard (FoodLegal Senior Associate) and Joe Lederman (FoodLegal Co-Principal)

© Lawmedia Pty Ltd, August 2021

New Plain English Allergen Labelling (PEAL) laws were introduced in February 2021, bringing about significant changes to the way allergens must be declared for many foods. Food businesses in Australia and New Zealand have to consider what their new obligations are under PEAL. This article explains some of the exemptions and remissions under the PEAL laws, and identifies more food products that will be subject to new labelling requirements.

FoodLegal offers training and compliance services and can assist food businesses in understanding their PEAL obligations and transitioning towards new allergen declarations.

Introduction of PEAL laws

The Plain English Allergen Labelling (PEAL) laws were introduced as an amendment to Standard 1.2.3 of the Australia New Zealand Food Standards Code (Food Standards Code) on 25 February 2021.

The new PEAL laws bring about massive changes to the way that many food businesses will have to declare allergens in their food products, by introducing a suite of mandatory formatting requirements. In previous editions of FoodLegal Bulletin, we have discussed the issues facing processed products containing tree nuts, products containing processing aids, the imposition of font height requirements and the inherent difficulty that comes from the exclusion of precautionary allergen labelling from the scope of the PEAL laws.

This article is designed to assist food businesses in assessing whether they will have to implement the full suite of changes under the PEAL requirements. Nearly every food product will be subject to some sort of allergen labelling requirement; however, some products may qualify for exemption or remission from the full prescriptive label formatting content or other requirements.

1.     Exemptions for some types of allergens

It is important for businesses to be aware that some in some cases a substance may not trigger allergen declaration requirements, even if the substance has been derived from an allergen.

Many food businesses will be familiar with the list of allergens that existed in Standard 1.2.3 of the Food Standards Code before the introduction of the PEAL laws. Any substance that appeared in this list was required to be declared as an allergen unless it fell under a prescribed exemption.

Under PEAL, this list now appears in a table format in Schedule 9 of the Food Standards Code. Importantly, the PEAL changes carried over the exemptions that existed in Standard 1.2.3. These now appear in column two of the table in Schedule 9. Substances that are exempt from allergen labelling requirements include:

·        Certain gluten cereals that are present in beer or spirits

·        Alcohol distilled from whey

·        Added sulphites in concentrations of less than 10 mg/kg

Food businesses should assess whether the substances in their requirements would trigger allergen labelling requirements at all.

2.     Products not in a package

The majority of the formatting requirements under the new PEAL laws relate to how allergens must be declared on pack. Unpackaged products therefore face less stringent requirements.

If a food is not required to bear a label under Standard 1.2.1 of the Food Standards Code, it must make a declaration of any allergen using the relevant prescribed name for that allergen. Additional formatting requirements do not apply. For unpackaged products, this declaration may be made by displaying the relevant allergen information with the food for sale or providing it to the consumer upon request.

A similar exemption applies to foods sold to caterers or at wholesale (as long as the product is not being sold as suitable for retail sale). Such products will have to make an allergen declaration using the relevant prescribed name, without any additional formatting requirements.

3.     Products without an ingredients list

Even if a food product is required to bear a label, it may still face reduced obligations under PEAL if it is not required to have an ingredients list. Standard 1.2.3 exempts the following products from many of the PEAL formatting requirements on the basis that these products do not have to display an ingredients list on pack:

·        Packaged water

·        Sandardised alcoholic beverages

·        A food in a small package (of less than 100 cm2 total surface area)

·        A food where all of the ingredients are listed in the name of the food

Such products must still include a declaration of any allergen in the product using the relevant prescribed name somewhere on pack.

4.     Special categories of food

Some categories of special purpose foods are excluded from virtually all of the requirements under PEAL. These categories consist of:

·        Foods for special medical purposes

·        Infant formula products for special dietary use

These products are simply required to state the name of any allergen present on pack. The allergen does not have to be declared using the prescribed name.

5.     Transition period

The new PEAL laws were introduced with a three-year transition period. This means that up until 25 February 2024, food businesses may comply with either the new PEAL requirements or the old allergen labelling requirements as they existed prior to 25 February 2021.

There is a further two-year stock-in-trade period up until 25 February 2026 to allow businesses to sell product that had been compliantly packaged prior to 25 February 2024.

Food businesses should use this time to assess their obligations under PEAL so that they can effectively plan their transition to the PEAL requirements.

6.     Further allergen labelling information apart from PEAL

Although many of the above exemptions exclude some foods from having to comply with the full suite of PEAL requirements, every food product will still be subject to a requirement to declare allergens to ensure that the final product presented to consumers is safe. This includes the identification of cross-contact allergens through precautionary allergen labelling, which is excluded from the scope of PEAL.

Most packaged foods will still have to comply with all of the PEAL requirements, including mandatory formatting. FoodLegal encourages every food business to assess its obligations under PEAL and consider obtaining our professional advice to ensure that labels are compliant.

This is general information rather than legal advice and is current as of 30 Oct 2021. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.