7th January 2020

CPPD Module 17: Food Allergens

This CPPD module is based on a recent case in which a company breached the Food Safety Act by supplying a product which had been contaminated by an allergen.


By Tim Keohane & Steve Emmett
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On October 11 this year Zorba Delicacies Ltd of Ebbw Vale, Wales, pleaded guilty to two offences under The Food Safety Act 1990 (selling food not of the nature demanded by the purchaser, S14; and furnishing false or misleading information to officers, S33) and one offence of placing unsafe food on the market, contrary to the provisions of the General Food Regulations 2004. The company was fined £93,000 and ordered to pay costs to Caerphilly Trading Standards of almost £15,000.

The case began in February 2018 when Hayley Lancaster, who had been diagnosed with severe nut and egg allergies as a child, settled down to watch TV with her favourite snack: a bag of corn chips and a pot of Morrisons tzatziki dip. After one mouthful she felt the symptoms of anaphylaxis. She was alone at home, but fortunately had her EpiPen to hand and averted tragedy. She was, however, very ill and extremely frightened.

Shortly afterwards she contacted trading standards and indicated that she thought the dip contained egg or nuts. The Morrisons from which she purchased the dip was visited and the sole remaining pot with the same code was procured for analysis.

Both the pot Hayley had purchased and the sample were analysed and found to contain significant amounts of egg, where none should have been present. Egg – one of the 14 allergens as laid down in Annex II of the EU Food Information for Consumers Regulation (No 1169/2011) (EU FIC) – has to be prominently indicated on ingredient lists.

Morrisons was contacted, supplied the details of Zorba, the manufacturer of the dip, and conducted its own swift investigations. Trading standards also made initial contact with Zorba and commenced an investigation into how this could have happened.

Breach of procedure

Zorba’s early theories centred around the accidental introduction of egg at some point in the production process. The company suggested it had a robust Allergen Management System and indicated it was subject to third-party audits from Morrisons as well as other major retailers and third-party UKAS auditors, who had awarded it the highest AA+ rating.

A walk around the factory by the investigating officer was undertaken and a plethora of documents were requested, including recipes, training records, procedures, production plans, production records and details of allergen sampling and analysis.

In total Zorba provided 116 documents consisting of thousands of pages, which were laboriously examined, to try to find out where the egg had been introduced into the product and examine whether Zorba had taken all reasonable precautions, had exercised all due diligence and could perhaps satisfy the defence provisions under Section 21 of the Act.

It soon became apparent to the lead investigator, Andy MacKay, that the problem appeared to arise from the company’s production schedule, where not only on the day of production of the offending items, but on others too, Zorba was operating in contravention of its own Allergen Management Policy by producing allergen-containing products before non-allergen products on the same line, and that it was apparently not adhering to the appropriate clean-down procedures. 

The company was formally interviewed and insisted this was a “one-off” occurrence and the blame was probably down to a single operator who no longer was employed.

The documents presented and the company’s explanation did not ring true. Andy contacted the analysts used by Zorba and obtained certificates indicating that other similar products had also tested positive for egg; this meant that the company had provided false information, which had hindered the investigation. Furthermore, the ex-employee was located and in his statement indicated that procedures were very poor.

It was now clear that any defences the company threw up could be countered. Caerphilly was fortunate in that Andy was the Lead Officer for food in Wales, undoubtedly an expert, and able to present evidence as such. Sadly, during the course of the investigation, Andy fell ill and the prognosis was the worst.

Andy was a passionate officer and completed the investigation before he was forced to retire on grounds of ill health. Knowing that he wouldn’t be around for any trial, he suggested Caerphilly employ a technical expert who could examine the procedures and identify where Zorba had failed. 

Accordingly Caerphilly instructed Steve Emmett, a self-employed Chartered Trading Standards Practitioner who has extensive experience in factory auditing, due diligence and allergen management.

Key things to watch out for

The process flow at Zorba showed that there were four major areas where cross contamination could occur:

▪ Mixing bowls

▪ Moving mixing bowls and decanting into a hopper

▪ Pump

▪ Lines to depositors

The same lines were used for both allergen-containing products and allergen free products, so it was imperative that Good Manufacturing Processes (GMP) were followed and that effective, verified cleaning between batches took place. There were a number of cleaning procedures for the line, all written and signed off by different managers, some dating back to 2013, thus indicating there was no proper oversight of effective line cleaning. 

Some verification of the line cleaning had been carried out, but this was inadequate and had missed obvious potential product traps e.g. the pump. There was no programme of testing of finished products for cross-contamination.

Deficiencies in the defence

Andy had been supplied with two large lever arch files of documents from Zorba’s solicitors which were handed on to Steve, together with witness statements from the complainant, trading standards staff and the ex-employee.

Zorba produced products for most of the major retailers and was certified by an independent inspection company accredited to the British Retail Consortium (BRC) Global Food Safety Standard. It had achieved grade AA+, which means that the audit was unannounced and there had been five or fewer minor non-conformities against the standard.

As a producer for most of the major supermarkets, Zorba was also regularly audited by food technologists from these retailers, many of whom had their own particular requirements in relation to allergen management. Many of these audits would also be unannounced, so on the face of it, with a number of independent audits focusing on food safety, one would expect 

Zorba to have a very robust system and due diligence defence. However, on careful examination of the documents it was clear that this was far from the case and the practices operated at Zorba were an accident waiting to happen.

The legal requirement to carry out a risk assessment formally as a HACCP (Hazard Analysis and Critical Control Points) stems from EU 178/2002 and more specifically EU 852/2004. Zorba had an adequate HACCP plan but Allergen Management, known as an Operational Prerequisite Program, was not adequate.

Zorba had a policy of producing allergen-free products first, which is an obvious safety measure. However, records showed that this was routinely ignored.

Morrisons had its own policy of allergen management which was in addition to the requirement, but again this was not complied with.

There was a policy for checking cleaning in the mixing room – the taking of contact allergen swabs – but no records of swabbing could be produced and the ex-employee confirmed that no swabbing took place during his time at the company. The response to not keeping records of the cleaning swabs was “no one told us we had to”.

There was the unexplained difference between identically numbered test certificates, one direct from the test house showing the presence of egg, and an identical numbered certificate from Zorba showing the product was egg-free.

What is surprising about this case is that a number of audits from both third-party UKAS-approved auditing companies and retailers’ own food technologists had failed to recognise the obvious failings in the allergen management system.

Zorba is a company with an annual turnover of more than £50m, although its accounts show it has made no profit in the past two years. The directors draw £250,000 a year each; this was all taken into account by the District Judge, along with the fact that the company had provided false information to trading standards. In sentencing the company he said that its actions “had the potential for catastrophe”.

Andy MacKay passed away shortly after retiring from his role, but would have been delighted that all his efforts achieved this result.

 

Questions

Review the 8 questions below, and when you’re ready, submit your answers at tradingstandards.uk/cppdtest

1. Which were the four main areas identified as being liable to cross contamination?
2. What is the maximum number of non-compliances allowed which would still allow a AA+ BRC Global Food Safety Standard to be awarded?
3. What type of programme is Allergen Management known as?
4. What European Regulations dictate an effective HACCP plan?
5. What are the elements of the statutory defence under the Food Safety Act 1990?
6. Which European Regulation outlines the 14 allergens that have to be declared?
7. One of the charges against the company was for placing unsafe food on the market; which regulations is this offence under?
8. The second charge was under Section 14 of the Food Safety Act 1990, but was the tzatziki dip not of the nature, substance or quality?

Applicants who complete the module successfully will be given a certificate. 

The test must be taken by 31 March, 2020.

If you have any questions, please email training@tsi.org.uk