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Food Allergies: A Call for Greater Precaution in the Food Service Industry

February 12, 2020


When ordering food—any type of food, at any type of restaurant—I have to ask if it contains tree nuts. All too frequently, the answer I receive is: “I don’t think so,” to which I politely respond, “can you please check?” The server will often grab a co-worker passing by who will then provide a similarly unconvincing answer. While pretending to accept their reassurances, I think to myself that perhaps if I’m lucky the manager will walk by the table and I can discretely ask him or her too. Three employees can’t be wrong, right? Or is avoiding the social anxiety and inconvenience of drawing more attention to my allergy worth the risk of anaphylaxis (a life-threatening allergic reaction causing a drop in blood pressure and constriction of the airways)? How many Benadryl are in my bag? At least I have my EpiPen.

Food allergies are increasingly prevalent in society. The risk of harm from an anaphylactic reaction, however, is frequently overlooked or disregarded, especially by the food service industry. In the United States, anaphylactic reactions to food result on average in 30,000 emergency room visits, 2,000 hospitalizations, and 150 deaths per year. If a customer is mistakenly provided food containing an allergen that was communicated to the restaurant, the restaurant may be liable under civil claims of strict liability, negligence, or breach of warranty. Yet those with severe food allergies understand that we dine largely at our own risk. While there is currently no cure for most food allergies, allergic reactions among restaurant patrons are highly preventable at minimal cost or effort.

The U.S. Food and Drug Administration (FDA) implements the Food Allergen Labeling &  Consumer Protection Act of 2004 (FALCPA). It requires the labels of packaged FDA-regulated foods to clearly identify any of the eight major food allergens they contain (milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, and soybeans). Additionally, the FDA Food Safety Modernization Act of 2011 (FSMA) requires restaurant operators to have written preventative control plans for handling hazards, including food allergens. However, there is no federal mandate for restaurants to disclose major allergens in food prepared and served onsite. The lack of federal food allergy regulations that apply to restaurants compared to packaged food manufacturers is problematic — many people with food allergies routinely eat out, either by choice or due to social or professional obligations.

Several states have enacted legislation specifically requiring some or all food-service establishments to take additional food allergen precautions. The varied  laws passed by Illinois, Massachusetts, Maryland, Michigan, Virginia, and Rhode Island include provisions requiring restaurants to display food allergy awareness posters to employees, place notices on their menus asking customers to inform the restaurant of any food allergies, and have at least one trained and certified food protection manager.

These state laws are a step in the right direction, but they do not go far enough. All managers, servers, and kitchen staff should be specifically trained on major food allergens and how to effectively communicate with customers about allergies. Strict cross-contamination measures should be implemented. Menus should identify the major food allergens contained in each menu item, or at least alert customers to the potential of allergens, which can lead to further inquiries. On their own initiative, some restaurants have used symbols on menu items to denote “contains nuts” or “gluten-free.” To the extent possible, alternative ingredients should be used in place of major allergens. These precautions are not likely to be more expensive or burdensome than those required by basic food safety guidelines, and they can result in a decrease in preventable allergy related morbidity and mortality each year.

This post was developed by Cecilia Nieto, Legal Researcher, Network for Public Health Law – Western Region and J.D. Candidate, Sandra Day O’Connor College of Law, Arizona State University (2021) and reviewed by James G. Hodge, Jr., JD, LLM, Director, Network for Public Health Law – Western Region.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not necessarily represent the views of, and should not be attributed to, RWJF.