So far this year, there have been a total of 117 recalls of food products for the presence of undeclared allergens. This represents over half of the recalls in 2021. There were 28 recalls for the presence of undeclared milk, 21 for soy, 19 for egg, 19 for tree nuts, and 16 for wheat. And, looking forward, the numbers of recalls for the presence of undeclared allergens may begin to increase even further.

In April, President Biden signed into law the Food Allergy Safety, Treatment, Education and Research (“FASTER”) Act. The FASTER Act will officially make sesame the ninth allergen that must be declared on food product labeling. While companies have historically struggled with appropriately declaring the presence of allergens, the addition of a ninth, effective on January 1, 2023, is sure to further complicate those efforts.

As food laws and regulations continue to expand, infusing new risks and exposures into the production of food, there are many things that food companies can do to protect themselves. The most important place for companies to start is to ensure that they have strong trustworthy with strong food safety programs. The risk which companies expose themselves to by selecting suppliers based only upon the price of the ingredient far outweighs the protection which companies receive when they select choice suppliers, even if the cost of the goods is ultimately slightly higher.

The second area companies can and should work to protect themselves is to ensure that they have robust agreements in place with their choice suppliers. A good supplier will be willing to sign an agreement which provides for indemnity if they believe in, and are willing to stand behind, their products. I always counsel my clients to shy away from any suppliers that are not willing to sign a basic continuing guarantee and indemnity agreement because it signals that they lack any real faith in the products they are selling.

A third area for companies to focus on is recall insurance. Companies can determine how much recall insurance to carry by determining, in any given scenario, what their largest recall would entail, and then purchase an adequate amount of insurance to cover those potential losses. Companies should also require that their suppliers carry recall insurance as well. This way, even in the event of a large-scale recall, there will likely be adequate funds to cover the losses.

The final area companies should focus on is ensuring that they have adequate controls in place to appropriately manage for the risks caused by allergens. Too often, when companies get busy, operations takes precedence over food safety and allergen change-overs are not performed adequately or other things are missed. While it is important for any company to fill orders, doing so at the risk of a potential recall because of the presence of an undeclared allergen is never a wise decision.

Now that we will soon be faced with the “Big 9” allergens, all companies should make allergen control a priority. Begin working today to improve your suppliers, contacts, insurance and allergen control programs, to make sure that you stay off the “Big 9” recall list tomorrow.

The U.S. declares a new allergen

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