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Mr Tallon
Mr Tallon
Mr Tallon’s report runs to 42 pages including appendices and was accompanied by a bundle of supporting material and literature of 1707 pages. He is a chartered scientist and registered nutritionist with a particular specialism on food law. We accept that his experience qualifies him as an expert in the matters to which his evidence relates.
His instructions required him to answer 9 questions. His report and oral evidence provided a high-level answer to each and then a detailed explanation as to how the answer was reached.
During the course of Mr Parr’s cross examination of Mr Tallon, at various points, Mr Parr sought to challenge the inadequacy of Mr Tallon’s instructions and thereby the scope of his evidence. As Mr Parr has been given an opportunity to review and agree Mr Tallon’s instructions, and on the basis that those instructions had been considered and amended by the Tribunal, we informed Mr Parr that such challenge was inappropriate.
We summarise Mr Tallon’s evidence as follows:
Under food law, a food is defined as “a substance or product, whether processed, partially processed or unprocessed, intended to be reasonably expected to be ingested by humans” (Article 2 of Regulation 178/2002). Food is defined to include drink and substances including water intentionally incorporated into the food during its manufacture preparation or treatment. An ingredient is defined to include any substance or product including food additives and any constituent of a compound ingredient used in the manufacture or preparation of food and still present in the finished product even if in an altered form (Article 2(f) Regulation 1169/2011). Food additive means “a substance not normally consumed as food in itself and not normally used as a characteristic ingredient of food, the intentional addition of which for the purposes of manufacture, processing, preparation, treatment, packaging, storage or transport may be reasonably expected to result in it or its byproducts becoming directly or indirectly component of such foods” (Article 3(2)(a) of Regulation 1333/2008).
N2O is regulated as a Group 1 substance under Regulation 1333/2008) and identified as E942. So identified, its use is not limited such that there is no requirement to set a dose amount.
N2O has the function of a processing aid under the same regulation as it acts as a foaming agent (defined as a substance which makes it possible to form a homogenous dispersion of a gaseous phase in a liquid or solid foodstuff – item 5 Annex 1 to regulation 133/2008) and/or propellant (defined as gases other than air which expel foodstuff from the container).
The Chargers contain liquid N2O, and their intended use is in conjunction with a Cream Whipper for the purposes of whipping cream.
He explains how the Cream Whipper and the Charges work together. In essence, the cream (which may be liquid cream or, in his understanding, more commonly cream power and water) is inserted into the main container of the Cream Whipper and sealed. The Charger is connected and the liquid N2O is released into the container with the cream. The N2O and cream are shaken together. As N2O is soluble in fat it is dissolved into the cream whilst under pressure within the container. The Cream Whipper is inverted and by releasing the lever on the nozzle the cream/N2O solution is propelled through the nozzle by the change in pressure as the liquid N2O changes to gas N2O. As the liquid N2O was dissolved into the fat in the cream the gas forms bubbles in the structure of the cream creating a foam/whipped texture to the cream. The expansion of the liquid state cream to foam (or whipped cream) is known as “overrun”. The expansion is 300-500%.
Cream which is whipped in this way is more unstable that cream whipped mechanically. Both means introduce gas into the cream. Mechanical whipping introduces air. The N2O bubbles introduced through use of the Cream Whipper will diffuse, smaller bubbles (where pressure is higher) with coalesce to form larger bubbles which will eventually pop and as this happens the whipped cream will collapse. This collapse occurs at a must faster rate with cream whipped with N2O using the Cream Whipper than cream whipped mechanically.
The different means of whipping cream produce cream with different mouth feel. Mechanically whipped cream being more solid or less light, than the N2O whipped cream. Both products (if from the same cream source) would taste the same.
Cream whipped with the Cream Whipper would, in Mr Tallon’s estimation, return to its liquid state in approximately 30 mins but the rate of collapse would depend on a range of factors including temperature (including for instance whether the cream was whipped onto a hot substance, i.e. hot chocolate, or a cold substance, i.e. frozen drinks); the fat content of the cream itself (double cream has a higher fat content than whipping cream or single cream); the use of emulsifiers or other additives intended to affect the stability of the whipped cream.
There was no literature or other evidence which determined how much, if any, N2O is ingested by someone consuming the cream with the Cream Whipper and the Chargers. He undertook some reasoned estimation which concluded that the maximum amount which could be ingested in a 150ml portion of cream whipped with the Cream Whipper was 0.79g. This was based on assumptions which were unlikely to hold entirely true such that 0.79g was highly unlikely to represent the amount ingested and the figure would be smaller. For instance 0.79g assumed that all 8g was used in whipping 500ml of cream (i.e. none was left in the main cream container), that none dissipated prior to consumption of the whipped cream and that as the act of consumption took place all the N2O was ingested (i.e. taken into the stomach) rather than being breathed in whilst in the mouth through chewing.
Mr Tallon also explained how N2O is used and eliminated by the body. Whilst it is less relevant to the issues we have to decide, we understand that where N2O enters the blood stream through intestinal absorption or inhalation it will be eliminated through exhalation though some may be used to produce amino acids and excreted through urine or sweat.
When used for medical purposes, in significantly larger quantities, it may be used as an anaesthetic.
In food science and food law “nutritional value” is a defined concept measuring whether the food substance under consideration contains energy (calories) in the form of fat, protein, carbohydrate, fibre, or sugar. In this sense N2O had no nutritional content.
Mr Tallon considered the N2O, which he dispensed into a bag and inhaled (contrary to the product’s instructions) to be colourless, tasteless, and odourless though he accepted that certainly odour and taste might be experienced differently by different people.
In terms of cost the use of the Cream Whipper (requiring up-front investment), the Chargers and then the cream ingredients represented a more expensive means of delivering the retail consumption of whipped cream than, for instance, purchasing a can of instant whipped cream.
Professor Naranjan’s letter reflects Mr Tallon’s evidence in the following regards:
Concerning the definition of food and additive under food regulation.
N2O does not add to the calories of food.
N2O is odourless, colourless, and tasteless.
When N2O is used in comparison to air in order to whip cream the whipped cream it produces has a higher proportion of bubbles which are larger in size rendering it more unstable dissipating quickly after whipping and thereby reducing the presence of the N2O in the whipped cream as time passes before consumption.
N2O is highly soluble in cream.
When used in the Cream Whipper the N2O acts as both a propellant and develops the structure, texture, and mouthfeel of the whipped cream (i.e. is a foaming agent).
Burden of proof
In this appeal the Appellant must show, on the balance of probabilities, that the supplies of the Chargers are properly zero rated.