Food Allergies and Dining Out

by Claire Crowley

For most people, a visit to a restaurant is a simple, enjoyable experience. But for people with food allergies and the restaurants that serve them, a simple meal has the potential to result in life-threatening allergic reactions, lawsuits and changes in legislation that impact the ways in which we all enjoy our meals.

According to Food Allergy and Research Education (FARE), a nonprofit organization that seeks to improve the quality of life and health for persons with food allergies, researchers estimate that 15 million Americans have food allergies, and that every three minutes a food allergy reaction sends someone to the emergency room. These numbers are especially alarming when you consider that the U.S. Food and Drug Administration (FDA) estimates that one-third of our calories are consumed away from the home.

According to the FDA, the most common food allergies include peanuts, tree nuts like  almonds and walnuts, fish, shellfish such as crab and lobster, wheat, milk, eggs and soy. Anaphylaxis is a severe allergic reaction that can occur when an individual with a food allergy ingests or comes into contact with an allergy-triggering food. Anaphylaxis results in 2,000  hospitalizations and over one hundred deaths each year.

Restaurants and even restaurant staff can face severe legal repercussions for failing to properly accommodate customers with food allergies. Recently, a Massachusetts family filed a lawsuit against Panera Bread for serving their six-year-old daughter a grilled cheese sandwich that contained peanut butter. The family claims that, when placing the food order online, they made a note about the girl’s peanut allergy but somehow a scoop of peanut butter made its way into the girl’s sandwich and resulted in her hospitalization. In another recent case, according to Radio-Canada, a restaurant patron in Quebec notified his server of his severe seafood allergy, only to be served salmon tartare instead of the steak tartare that he ordered. After unassumingly consuming the seafood in the dimly lit restaurant, the customer suffered anaphylactic shock and slipped into a coma. The server was later arrested and may face criminal negligence charges. The restaurant customer is seeking compensation from the restaurant for damages resulting from the mix-up.

Restaurant customers who are served a food to which they are allergic will commonly sue the restaurant for negligence. In a typical negligence lawsuit, a customer must prove that they notified the server of their allergy, that the server failed to exercise reasonable care after being notified of the allergy, and that the failure to accommodate the allergy led to the customer suffering damages, typically consisting of medical bills for the treatment of the allergic reaction. A restaurant will commonly defend itself against a negligence lawsuit by arguing that the customer did not properly warn their server of the allergy, that the customer failed to inquire into the methods by which the meal was prepared, or that the possibility of a customer suffering an allergic reaction as result of consuming the food was not foreseeable by the restaurant. Many of these cases are settled out of court, as litigation is time-consuming and expensive.

As the awareness of food allergies becomes more heightened, states are beginning to adopt legislation that aims to protect restaurant customers with food allergies. According to FARE, some states and metropolitan areas have passed restaurant awareness laws and ordinances,  including Massachusetts, Rhode Island, Maryland, Virginia and Michigan. Also such metropolitan areas as New York City and Saint Paul. Restaurant awareness laws include requirements that restaurants post multilingual food allergy awareness posters in staff areas, employ certified food safety managers, conduct special allergy awareness trainings for staff and place notices on menus that remind customers to notify their server if anyone in their party has a food allergy. These laws can be beneficial to restaurants as well, resulting in fewer lawsuits and more customer confidence.

The Vermont Legislature has yet to adopt restaurant food-allergy awareness laws, but some restaurants in the Montpelier area make special efforts to accommodate customers with food allergies. For example, Sarducci’s offers a gluten-free menu separate from its traditional menu, while other restaurants, like La Puerta Negra, display icons next to menu items to indicate dishes that are gluten-free, dairy-free and vegetarian or vegan. The New England Culinary Institute in Montpelier is also taking steps to educate budding chefs about food allergies by offering courses on preparing menus for customers with varying dietary needs.

There will always be risks in dining out for customers with food allergies, but there are steps that customers can take to lessen the possibility of a bad experience. FARE recommends that customers with food allergies call restaurants beforehand, order simple meals and communicate needs clearly with restaurant staff. Hopefully these tips, along with changes in laws and an increase in food allergy awareness, will result in enjoyable dining experiences for both customers and restaurants alike.

Claire Crowley is an attorney and travel enthusiast. She combined her love of travel and the law by starting Legal Travels, a blog that analyzes the legal issues that impact the travel, tourism and hospitality industries. If you have a question for Claire, email editorial@montpelierbridge.com.

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