A post on the Sugarpuffish blog last week illustrates yet again the frustrating unintended consequences of the FSA’s attempts to keep allergic people safe.
Sugarpuffish, who is very intolerant of dairy, noticed that one of her favourite snacks, 9Bars, had taken their ‘dairy free’ declaration off their bars. Concerned that they might have changed their recipes she emailed them and they responded to the effect that nothing had changed in the manfucture of their bars which remained dairy free but….
They had recently been advised by the FSA that, in the absence of any clear guidelines on an acceptable ‘threshold’ for dairy, they would be enforcing a zero tolerance approach. This means that if any of the allergen at all, no matter how minute the amount, is found in a product – even if it is below the current levels for which a laboratory can reliably test (under 2.5 parts per million in the case of dairy) – the product will not be deemed to be dairy free. It would therefore be infringing the regulations and the makers would be liable to prosecution. (The threshold has now, as you will all know, been set at 20 parts per million for a product to be called gluten free.) Since 9Bars do use dairy in other areas of their plant, they cannot guaranteed that cross contamination could never ever happen, even be it at a minutely low level. At which point they would become guilty of selling as ‘dairy free’ a product which contained dairy, even thought the amount could be ten times smaller than the amount of gluten allowed in a ‘gluten-free’ product.
Result: another dairy-free product has been removed from the diet of those who are avoiding dairy, thus further restricting their choice.
I am not really blaming the FSA (and their partners in the EU) for this – well, not entirely anyhow. They want to ‘get science right’ before they set ‘levels’ or ‘thresholds’ for the amount of an allergen that will be ‘safe’ – and so they should. The trouble is that, not only is this an extremely lengthy process (they have already been at it for about ten years and there is little that there will be anything concrete coming out of their deliberations for another two or three years at the very minimum), but that this is not an area of absolutes.
Food allergy is extremely complex and little understood – why it happens, how it happens, what it takes to cause a reaction etc etc. Research is ongoing and the goal posts change on an almost weekly basis. Look, for example, at the ‘guidance’ given to new mothers about peanut allergy; a mere two years ago pregnant women were advised to avoid peanuts at all costs while they were pregnant; now the advice is the diametric opposite – and the research projects intended to settle the matter are still on going. Even if they come to some definite conclusions, who knows whether these will be overturned a month later by some yet newer piece of research.
So waiting ten years for guidance which may still only be provisional does not seem helpful. Why could we not have had some ‘provisional’ guidance now, or indeed five years ago? It could have been stringent (way below what was generally thought to cause a reaction) and it could have come with the proviso that those with very serious, life-threatening allergies should still treat the product with caution. At least it would have given freefrom manufacturers something to work to – and it would have avoided the current situation in which perfectly safe products are being taken off, or never being offered on, the ‘dairy-free’ market because of a risk far lower than that deemed acceptable for coeliacs. 9Bars are certainly not the only company that has removed a dairy free claim – or that has not made a dairy free claim – even though the product is totally dairy free.
Something doesn’t feel right here …
Surely this ‘zero tolerance’ approach cannot mean a minute amount under the detection threshold of 2.5ppm? If it can’t be detected, how can such a thing be discovered and the rule enforced? If we can’t detect it, we can’t know it’s there …. Any theoretical prosecution would have to prove something that cannot be proven.
I’m confused about this ‘zero tolerance’ approach. What does it mean, in practice? That no ‘dairy free’ claim can be made, by any manufacturer, anywhere? In that case, quite a lot of vegan products will be impacted. Or does it mean where there’s a cross-contamination risk (‘made in a factory where dairy is used’ etc) the ‘dairy free’ claim cannot be used?
Isn’t the obvious temporary solution to use a ‘no detectable dairy’ claim …. ?
My understanding is that the reliable, reproducible lowest current detection level for dairy is 2.5ppm. However, that does not mean that some lab somewhere might not pick up a lower amount, even though it might be, in reproducible terms, a freak. But if they did, then that manufacturer would, technically, be guilty of selling a product under false pretences, as being dairy free when it was not. How the dairy came to be in the product (contamination or whatever else) would be of no interest to the law.
And yes, technically, a lot of vegan products could be implicated – which is what I meant by ‘unintended consequences’ of trying to protect the allergic consumer by ‘tightening’ up the regulations.
Unfortunately, I don’t think a ‘no detectable dairy’ claim would do it unless you can set a definite level for what is/is not detectable – as per the above….
Thank you for sharing & expanding on this topic. As the consumer this has left me scratching my head & I am wondering how many more of my favourite products may take this approach.
Well, I certainly know of a few which could be among your favourite products except that they are not prepared to stick their necks out and declare ‘dairy free’ until they have some sort of threshold security…..