Is a Restaurant Liable for Allergens in Food?

Use these links to jump to different sections:

• Dining out with Food Allergies
• Proving Negligence
• Intentional Sabotage

You’ve probably noticed that food allergies have been on the rise in recent years. Peanut, milk, tree nut, shellfish allergies and celiac disease have all seen an increase in incidence as well as an accompanying elevation in public consciousness. While some intolerances can trigger relatively mild reactions, others are severe allergic reactions and can be life-threatening, even from trace amounts. According to the Centers for Disease Control, food allergies are responsible for approximately 30,000 emergency room visits per year. A 2015 Northwestern Medicine study found that ER trips and hospitalizations for children with severe food allergies nearly tripled in Illinois in five years. For anyone dealing with a food sensitivity issue, it’s important to know what’s in your food products. Under the The Food Allergen Labeling and Consumer Protection Act (FALCPA), food ingredient labeling laws were modified in 2004 (and went into effect in 2006) to require clearer labelling regarding the eight major food allergens, which have been found to comprise 90 percent of all food allergies. These laws apply to packaged foods, but not to food items that are made to order—such as food served in a restaurant.

Dining out with Food Allergies

For those with food allergies, eating out can pose a minefield. And yet, modern life makes it difficult—and sometimes downright unrealistic— to avoid consuming food produced in commercial kitchens. People with threatening conditions must be proactive and inform restaurants of their needs and inquire about an ingredient list for their food. But, ultimately, if they receive assurances that prepared food meets their needs, they have little choice but to trust the information, and the food, provided. Laws regulating restaurants are primarily established by states, and thus how food allergen issues are treated will vary from state to state. Illinois is one of only a few states to have enacted a law requiring food allergen safety training for restaurant staff. Under the state laws, all restaurant managers must undergo accredited food safety training regarding allergens, and are required to be recertified every three years. At least one certified manager must be onsite at all times a restaurant is open. The rule applies to all restaurants, food trucks, nursing homes, coffee carts, food service cafeterias, and other operations that commercially prepare food.

Proving Negligence

But what happens when something goes wrong and an individual is mistakenly provided food containing an allergen that was made known? Under what circumstances might a restaurant be held liable for its mistake? As a general rule, an action for harm caused by a food allergen in commercially prepared food will be assessed under the personal injury standard for negligence. That is to say, if a restaurant was negligent in their handling of a customer’s allergy concerns, which were communicated to them, they may be found liable. It’s not clear how Illinois’ new law will impact such claims. One challenge with any food allergy lawsuit lies in proving that the injury was in fact directly caused by the restaurant’s food. If, for example, peanuts are an ingredient in a recipe but this was not disclosed to someone with a known peanut allergy, a food allergy reaction could be proven. If, however, a reaction was caused by cross-contamination (that is, an ingredient that’s not part of the recipe accidentally made it into the item by virtue of its presence in the kitchen), it can be difficult to show that the allergen was actually present in the food consumed.

Intentional Sabotage

In more extreme cases, there may be a possibility of a blatant violation, such as with this Panera case in Massachusetts, where on two separate occasions, different customers with peanut allergies who ordered grilled cheese sandwiches were served sandwiches with large dollops of peanut butter inside. In both instances, the sandwich sent the customer into anaphylactic shock and the hospital. These facts would likely give rise to harsher penalties. While there may always be a risk of intentional sabotage, fortunately, this is not the norm. In the event of a serious allergic reaction triggered by eating commercially prepared food, talk to an experienced personal injury attorney who is familiar with food allergy injuries. For more information on this area of law, see our overview of personal injury law.