A research piece from Hampshire and Kent Scientific Services recently found that 90% of sampled vegan products contained traces of dairy or were otherwise mislabelled. This is not a one off - the Chartered Trading Standards Institute ("CTSI") has called for a statutory definition of ‘vegan’ food and for manufacturers and restaurateurs to be held accountable, inspired in part by Coroner Maria Voisin’s December 2022 report which exposed the sometimes fatal risks of trace ingredients in vegan products. The Vegan Society has also called for a strict definition and reiterated that many charities are eager to make their case.

What does the law say?

Under the Food Safety Act 1990, presenting food containing animal products as vegan is an offence. However, human error, the existence of disclaimers and food providers’ due diligence processes can, in certain instances, be relied upon as defences.

Following the retained EU Food Labelling Regulation (No 1169/2011), food businesses are only required to disclose the 14 listed allergens as ingredients on their labels. Any disclosure concerning risk of cross-contamination is only necessary if such a risk has been identified and not as a precautionary measure. Thus, a complete list proving the absence of animal products in vegan foods is not necessary. This is an issue as consumers with animal-derived allergens may assume that a product labelled “vegan” or “plant-based” is safe.

In the advertising space, the Advertising Standards Authority ("ASA") held in 2020 that Burger King had falsely advertised its plant-based burger. Despite the ingredients of the product being vegetarian, the cross-contamination during the cooking process resulted in a breach of advertising rules. The ASA considered the green colour palette of the branding, the presence of the “Vegetarian Butcher” logo, and the fact that the release coincided with ‘Veganuary’ to establish that Burger King expressed the suitability of the product for vegan customers.

What does this mean for businesses?

Whilst stricter ‘legal tests’ may not be right around the corner, the liability associated with any physical harm to consumer is an ever-present risk. On top of this, closer scrutiny from bodies such as the CTSI and ASA means food businesses may need to rethink their labelling and advertising practices.

This is particularly so at a time when an increased number of consumers without allergies are turning to plant-based products for lifestyle reasons – naturally, businesses will want to tap into that market and advertise their products as such. Missteps in this space could quickly lead to losing the trust of millennials and Gen Z – consumers who have distinguished themselves by the research they carry out on the products they buy.