From ‘dark kitchens’ to dual quality: Expert predicts 2021’s regulatory hotspots

Leading up to the will-they-or-won’t-they UK-EU Brexit deal, food labelling requirements and cross-border health certificates for products of animal origin were front-of-mind for many in the industry.

But moving into 2021, Brexit will not be the only regulatory challenge on food players’ minds.

According to regulatory compliance expert Nicola Smith, who heads up Environmental, Safety & Health at global law firm Squire Patton Boggs, food business operators (FBOs) should be mindful of food safety regulations in so-called dark kitchens, incoming allergen laws in the UK, and the EU-wide ‘dual quality’ directive.

Regulatory spotlight on ‘dark kitchens’​

While the COVID-19 pandemic saw foodservice shutter, the home delivery sector observed an unprecedented surge in demand.

An increasing number of consumers called on the likes of Deliveroo and Uber to deliver food. Indeed, early on in the pandemic, online food delivery was considered ‘one of the only winners’ in the coronavirus outbreak​.

As demand for takeaway grew, so too did so-called dark kitchens. Otherwise known as cloud or ghost kitchens, a dark kitchen is a professional kitchen that produces food for delivery only. Unlike a traditional restaurant, the food that is produced onsite can only be eaten elsewhere.

According to Smith, there is a view that dark kitchens, whether operating amid a pandemic or not, may be here to stay. And that, she told FoodNavigator, brings its own regulatory challenges.

Ensuring hygiene though delivery, maintenance of the cold chain, and the transferring of essential food information, are key challenges facing dark kitchen operators, Smith explained.

From a food safety perspective, for example, restaurants are having to rework how they disclose allergen information. “Normally restaurants have the customer there, they don’t have to do that extra step of transporting goods and potentially involving a third party in that process as well,” ​she elaborated.

“A third party [delivery driver] can’t just pop back to the kitchen to ask the chef [for allergen clarification]. There is a whole different approach potentially needed for those kinds of operations that they won’t necessarily have thought of before.​

“It’s not just about getting the information right, although that’s obviously important, but it’s making sure that information goes through the third party – whether that be Deliveroo, whether that be a delivery driver employed by [the restaurant]. ​

“These kinds of things could become more important in the coming months.” ​ 

Mandatory ingredients lists on pre-packaged foods​

Another allergen-related hotspot concerns FBOs that make pre-packaged food on premises for direct sale in the UK.

In October 2021, Natasha’s Law comes into force. The legislation is named after allergy victim Natasha Ednan-Laperouse, who suffered a fatal allergic reaction to a Pret a Manger baguette in 2016.

The coroner who presided over her inquest raised concerns that current legislation – which does not require pre-packaged foods prepared on the premises where they are sold to display allergen information on pack – is not adequate, and “future deaths could occur unless action is taken”.​

Squire Patton Boggs’ Smith suggested some FBOs may not yet be prepared for the incoming regulation, especially given Brexit, the coronavirus pandemic, and other pressing regulatory issues.

“There is actually a relatively short lead-time now to ensure that they can bring in those full labelling changes and be able to list all the ingredients on those labels in an accurate way,” ​said Smith.

“So many businesses have had to firefight with COVID and Brexit, I suspect many of them…probably haven’t given too much thought as to how they’re going to do that in practice. ​

“I think this is a challenge that will come around fairly quickly for a number of operators now.” ​

Dual quality in the EU​

2021 also marks a deadline for EU Member States concerning ‘dual quality’ products under the Omnibus Directive.

So-called dual quality food refers to products marketed the same way front-of-pack, but which are ‘significantly different’ in composition or characteristics.

The issue made headlines when politicians from some central and eastern European countries used compositional differences between ‘dual quality’ products to highlight inequality in standards between eastern and western Europe.

Two years ago, the European Parliament voted to blacklist ‘dual quality’ food​ with a maximum €10m penalty.

And now, Member States have until November 2021 to publish their measures to comply with the directive. The deadline for compliance is May 2020.

“Throughout the course of 2021, different Member States around the EU will be coming up with local laws to effectively put into force the EU’s directive that should prevent the marketing of goods as being identical, if actually they’re not,” ​explained Smith.

Germany was the first Member State to issue its draft. While it is only a draft at this point, Smith did say it indicates Germany is ‘a bit ahead of the curve’.

This is certainly ‘one for operators to track’, she continued, especially if they’re supplying goods to a number of markets around the EU. “The directive [notes] that authorities in EU countries can look at legitimate reasons for differentiating products. That might be changing a product to comply with national laws, or it might be a [recipe] change because of availability or the seasonality of ingredients,” ​she explained.

“I think this is something that, as the year progresses, will be of growing interest to operators.” ​