31 August 2012

Increased Liability for Food Industry: Food Allergy Legal News

Food allergy lawsuits are on the rise. Commercial kitchens (Food trucks, restaurants, educational facilities, grocery store deli's, coffee stands, etc.)  everywhere are at huge risk of being slapped with lawsuits, fines, and loss of a good reputation. There is about a 1% increase per year in people reported to have food allergies. 

"This is NOT A Diet FAD, this is an upward trend that is not going away and will not get better over time." In the United States there are 15 million people diagnosed with food allergies, that is 4% of the population in this country. Food Allergies are a global health issue (150 million people) and because people travel worldwide, it impacts every commercial kitchen and every business serving food. There is a 38% increase of people with at least one food intolerance, (i.e. gluten, lactose, msg, chocolate). 

When I scan headlines of traditional media sources from time to time, I am seeing more publicity on the food allergy lawsuits and food allergy awareness acts. It's articles like this appearing weekly in newspapers or news broadcasts:

$55K fine issued for food allergy offence

“Gluten-Free” Trend Spurs Demand for Restaurant Liability Insurance

FDA approves Intelliject's life-saving device for allergy sufferers

NY lawsuit says airline endangered child with peanut allergy

Canadian Hotel Fined for Serving Cheesecake with Nuts to Man With Allergies

McDonald's allegedly hiding French Fry Allergens

Family sues restaurant over seventh-grader's fatal food allergy

Chinese food at school's end-of-year party had peanuts or peanut oil, lab says

New food allergy labels

New Health Canada labelling rules will make it easier for people with food allergies to determine which products to avoid

In the Canadian case, the man sued and won because nuts were served in cheesecake after he said he was allergic. The reason the case was won was because they proved negligence. The server, restaurant owner, managers, cooks, and chefs are unaware of what is in their food items and didn't bother checking the packages. The restaurant and the waitress had to pay $25,000.

Food Allergy Laws:

1. According to the Food Allergen Labeling and Consumer Protection Act (FALCPA) of 2004, food manufacturers and distributors must label any ingredients that are “major food allergens” so consumers can take appropriate action. There is no cure for food allergies, so avoiding allergens is the only way consumers can protect themselves from potentially severe reactions. FALCPA identifies the following food groups as the “major food allergens:”

  • Milk
  • Eggs
  • Fish (e.g., bass, flounder, cod)
  • Crustacean shellfish (e.g., crab, lobster, shrimp)
  • Tree nuts (e.g., almonds, walnuts, pecans)
  • Peanuts
  • Wheat
  • Soybeans

There are over 150 deaths per year because of food allergy related issues and I would bet all of those could have been prevented if proper education, acknowledgment and policies were in place. Sure this isn't brain cancer where 190,000 people die every year as a result of not having a cure but apart from death there are a lot of people who feel miserable for 2 to 4 weeks after consuming something they are allergic to.

2. The Food Allergy and Anaphylaxis Management Act requires the US Secretary of Health and Human Services to develop and make available to schools a policy to manage the risk of food allergy and anaphylaxis in schools. It will provide for school-based food allergy management incentive grants to support implementation of food allergy management guidelines in public schools.

3. The Americans with Disabilities Act (ADA) is a civil rights law that gives you the right to ask for changes where policies, practices or conditions exclude or disadvantage you. As of January 26, 1992, public entities and public accommodations must ensure that individuals with disabilities have full access to and equal enjoyment of all facilities, programs, goods and services.
The ADA borrows from Section 504 of the Rehabilitation Act of 1973. Section 504 prohibits discrimination on the basis of disability in employment and education in agencies, programs and services that receive federal money. The ADA extends many of the rights and duties of Section 504 to public accommodations such as restaurants, hotels, theaters, stores, doctors' offices, museums, private schools and child care programs. They must be readily accessible to and usable by individuals with disabilities. No one can be excluded or denied services just because he/she is disabled or based on ignorance, attitudes or stereotypes.

Does the ADA Apply to People with Asthma and Allergies?
Yes. In both the ADA and Section 504, a person with a disability is described as someone who has a physical or mental impairment that substantially limits one or more major life activities, or is regarded as having such impairments. Breathing, eating, working and going to school are "major life activities." Asthma and allergies are still considered disabilities under the ADA, even if symptoms are controlled by medication.
The ADA can help people with asthma and allergies obtain safer, healthier environments where they work, shop, eat and go to school. The ADA also affects employment policies. For example, a private preschool can not refuse to enroll children because giving medication to or adapting snacks for students with allergies requires special staff training or because insurance rates might go up. A firm can not refuse to hire an otherwise qualified person solely because of the potential time or insurance needs of a family member.
In public schools where policies and practices do not comply with Section 504, the ADA should stimulate significant changes. In contrast, the ADA will cause few changes in schools where students have reliable access to medication, options for physical education, and classrooms that are free of allergens and irritants.

What a law firm has to say:

Food allergy injuries and deaths are on the rise. Reading the headlines from newspapers and the updates from the FDA sheds light on the increasing prevalence of food allergy injuries. Unfortunately, the cases often involve children and too often involve a fatal allergic reaction. The responsibility of avoiding these accidents is shared between consumers and restaurants. Consumers must ensure they inquire and warn restaurant staff about any allergies and food prepares must act diligently to avoid contamination. Sometimes this balance of warning and responding fails. 

The best claim in most states lies in negligence. To succeed on a negligence theory in a lawsuit, the victim will have to establish that the restaurant did not use ordinary and reasonable care in preparing the food, and as a result, the food became contaminated. In a case where the restaurant has been warned about a potential allergy what is reasonable will demand more scrutiny. For example, did the restaurant modify recipes known to contain peanuts? Did it separate utensils that were in contact with peanuts?
In states that have adopted strict product liability proving negligence can be avoided. Strict liability, however, often only applies to activities that are inherently dangerous. Keeping peanuts does not fall in that category. Under  a strict liability theory a patron does not have to show any negligence on the part of the restaurant- the very fact that the customer ate contaminated food and fell ill is sufficient for liability. Whether it is wise policy to add food allergies to state strict liability statutes is debatable. Given the growing prevalence of food allergies in children the debate is worth engaging in.
The Food Industry (ALL aspects) should be aware of the law but focus on safe food practices and education. 

Here is a great tool for the food industry: 

Contact info@ilaraholland.com or visit www.ilaraholland.com to find out how to get your staff and kitchen certified on food allergy awareness and get help with developing policies in your business as to how to manage food allergy challenged customers. Create raving fans and develop a loyal customer base by developing an Allergen Friendly Menu with AllerSmartMenu.

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