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Introduction

This paper will explore the legal and constitutional issues surrounding data breaches within the field of hospitality. By discussing three cases in which the identities of millions of unsuspecting guests’ identities were compromised due to the neglectful maintenance of databases on the behalf of three major hoteliers. Outlining causal factors ranging from weak security practices, malware, and the use of fraudulent instruments to either steal directly from customer accounts or to gain access to sensitive data from customer profiles to bypass banking or credit identity verification processes. Consequently, leaving patrons under imminent threat of identity theft due to the failure to install the proper security systems to shield against the intrusion of cybercriminals.

Subsequently, contributing negligence is the major theme of the case study portion of this paper. A section dedicated to the discussion of the legal precedents set by Dugas v. Starwood Hotels & Resorts Worldwide., 2016 U.S. Dist. LEXIS 152838, In re Marriot Int’l, Inc.,440 F. Supp. 3d 447 United States District Court for the District of Maryland Southern Division, and Sandra Smith v. Sabre Corporation. Cases used to highlight how the lack of preparedness against cybercrimes can be interpreted by courts as a breach of duty.

History

Prior to listing the reasons that courts will find a property to be negligent for not installing the necessary fail safes to protect customers, it is important to understand why hotels are highly targeted by cybercriminals. Industry insider and author of Why Do Cybercriminals & Identity Thieves Target the Hospitality Industry, Holly McCulloh asserts that hackers do so because hotels maintain systems that contain millions of guests records which are highly valuable on the dark web.

Hence, hackers will seek to find easily accessed vulnerabilities within a hotel’s network infrastructure, which they can easily exploit to access customer data. Generally, using phishing attacks to infiltrate hotel Wi-Fi networks to steal passwords and other sensitive data. An evolving technique which will grow in its sophistication as travelers demand more complete technology experiences while staying at hotels. (Advanced Hospitality Technologies)

Additionally, the entire hospitality industry has been noted for having some of the highest rates of security scams. According to the Report to the Nations on Occupational Fraud & Abuse approximately “one-third of all credit card fraud cases originate in hotels.” (Shah 2018) Resulting in an estimated loss of 5% to 6% of annual revenue from fraud perpetrated by hotel employees and guests. (Shah 2018) Therefore, it is imperative that hotels find ways to secure their network infrastructures to maintain their profitability, brand reputation, and to reduce all subsequent legal and financial penalties.

The article, Data Security in Hospitality – Why Is It So Important, offered another compelling reason as to why data breaches are a relatively common occurrence within hospitality. When it stated that “businesses in the hospitality sector such as hotels, and restaurants, often have a complex ownership structures consisting of a management company which runs the business, a separate owner or group of owners, and a franchisor.

These entities may store important data in computer systems and such information may be moved around frequently and such complex ownership structures could result in breaches.” (hospitalitynet.com) Structures that enable hackers to access a customer profiles and credit information through a property’s virtual private network (VPN) using the hotel’s public Wi-Fi networks.

Cybercriminals also access hotel networks by using malware to scrape card information from infected POS systems. As hotels increasingly rely on POS systems to streamline processes it is becoming more important that they “implement stringent measures to ensure user security.” Using an all -encompassing approach that ensures “user security, guest device security, network security, and personal security across their properties.” (Advanced Hospitality Technologies)

Other pervasive forms of fraud involve the use of false account credits, skimming devices, and fraudulent credit cards. Although much work has been done industry wide to document the use of these instruments, several large hotel chains have still managed to fall prey to scams incorporating their use. Due to their lack of preparedness, which courts have deemed to be a form of negligence.

In re Marriott Int’l, Inc. 440 F. Supp. 3d 447 United States District Court for the District of Maryland, Southern Division

One of the most well- known data breaches in hospitality is In Re: Marriott International, Inc., Customer Data Security Breach Litigation, Consumer Actions. A lawsuit brought the United States District Court for the District of Maryland, Southern Division against Marriott and Starwood Hotel’s Resorts Worldwide for the failure to protect its guests’ personal data.

On November 20,2018 Marriott announced that it suffered one of the largest data breaches in history. For a cybercrime gang, named Fin 7, was able to “infiltrate 383 million guest records, 24 million passport numbers, and a million credit and debit cards.” (In Re: Marriott International, Inc., Customer Data Security Breach Litigation, Consumer Actions) During its announcement the public was made aware that Marriott and Starwood were targeted because Fin 7 knew that its guest reservations system required the collection of sensitive customer data upon guest check-in requiring guests to provide their name, address, email address, phone number, and payment card information. In addition, it was known throughout the industry that Marriott and Starwood’s reservation’s system possessed the capability of storing patrons room preferences, travel destinations, and other personal information as a means of offering a greater level of customizable service. Arguably, one of the most valuable features of its reservations system, but what was readily accessed by hackers to steal data.

A fact worsened by Marriott & Starwood’s failure to immediately notify patrons of the data breach. For upon later discovery, it was revealed that Marriott executives were made aware of Fin 7 offenses on September 8, 2018 and withheld this critical information from the public until November 30,2018. It was also noted that if Marriott’s clientele were informed of the data security problems the brand was facing that guests “would have chosen to stay at other hotels, purchase, products or services at other properties, and/or would have paid less” for their stays. Depriving unsuspecting guests of the right to chose uncompromised hotels for their travel accommodations.

Marriott and Starwood’s failure to protect its customers’ data was deemed by the courts to be a breach of duty. Under Georgia Law, the lawsuit brought against both parties was defined as a Negligence per se claim. It also violated the Internet Business, Data Protection in E-commerce Environments Act, Maryland Personal Information Privacy Act, and the Michigan Identity Theft Protection Act. Laws requiring businesses to “implement and maintain reasonable security practices and procedures based on the personal information collected. Requiring businesses to conduct quick investigations and to provide immediate notification of security breaches without reasonable delay if a client’s unencrypted and unredacted personal information was accessed by an unauthorized person.” (In Re: Marriott International, Inc., Customer Data Security Breach Litigation, Consumer Actions)

For the plaintiffs’ argument stated compromised guests were under imminent threat of identity theft. Subsequently, leaving victims to manage “all costs related to the data breach and the loss of the value of their personal information.” The reported damages incurred by the plaintiffs included the loss of the benefit-of -the bargain, loss of time and money spent mitigating harms, and as previously mentioned the loss of value of personal information.

The courts ruled to partially grant Marriott’s motion to dismiss the claims brought against it by the plaintiffs. And the requirement of “plaintiffs to bring individual cases against Marriott proving the damages that they incurred because of the data breach.”

Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 2016 U.S. Dist. LEXIS 152838 United States District Court for the Southern District of California

In 2016, a case was filed against Starwood for similar reasons. Plaintiff, Paul Dugas, filed a lawsuit against Starwood Hotels & Resorts Worldwide, Inc. for damages he incurred after his credit card was compromised after purchasing spa services at a Sheraton San Diego Hotel Marina. Stating that his credit card was later used by an unauthorized third party for multiple purchases.

Additionally, had it not been for the provision of his personal data his credit card would not have been compromised by the third party who used his account for “unauthorized purchases, unnecessarily exposing him to losses, frustration, and on-going requirements to protect himself from identity theft.” Leading Paul Dugas to file a grievance within the United States District Court for the Southern District of California courts stating that Starwood violated the California Customer Records Act, California’s Unfair Competition Law. Defined as such because under the California Customer Records Act when a business that “owns, licenses, or maintains personal information about a California resident it shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure.” (Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 2016 U.S. Dist. LEXIS 152838)

Starwood’s actions were also considered an invasion of privacy and to fit the definitions of two forms of negligence. First, under the general definition of negligence because Starwood failed implement “adequate security measures to protect the information they obtained from customers.” Secondly, Dugas’ case fit the definition of negligence per se because he had a reasonable expectation of privacy under the circumstances, a legally protected privacy interest, and that third party’s actions were a serious invasion of the privacy interest.

In its ruling, the courts determined that the plaintiff, Paul Dugas, was not entitled to damages for the fraudulent charges because in his initial complaint “he did not allege out of pocket losses or monetary damages resulting from the data breach due to the defendant’s negligence or failure to maintain reasonable security procedures.” (Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 2016 U.S. Dist. LEXIS 152838)

The plaintiff’s motion to dismiss was granted and denied in part. Stating that Mr. Dugas’ “failure to meet the twenty-day deadline to amend the complaint or failure to cure the deficiencies identified within the case would result in the dismissal of his case with prejudice.” (Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 2016 U.S. Dist. LEXIS 152838)

Sandra Smith v. Sabre Corporation United States District Court for the Central District of California

Unlike Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 2016 U.S. Dist. LEXIS 152838 and In re Marriott Int’l, Inc., 440 F. Supp. 3d 447 United States District Court for the District of Maryland, Southern Division , Sandra Smith v. Sabre Corporation United States District Court for the Central District of California is a frivolous case brought to the Central District of California by Sandra Smith to exploit the Sabre corporation for illegitimate damages.

On May 2, 2017 she filed a claim stating that her identity was compromised and that she suffered damages when she did not. Conveniently, timed after Sabre made public that its new SynXis system was breached by hackers. In her complaint she stated that because she was a frequent guest of “hotels that were known to use Sabre’s system.” The courts immediately dismissed her complaint without prejudice because it was a frivolous case that failed to rise to the level of a legitimate identity theft claim.

Analysis & Management Suggestions

In closing, it is imperative that hoteliers find strategic means of securing hotel networking systems, to circumvent avoidable lawsuits. Hotel management can achieve this objective by using firewalls, networking monitoring, traffic filtering, and anti-malware security systems. Also, by encrypting credit card information and creating a detailed response plan if a data breach should occur.

Identity Theft in Hospitality Industry

Identity theft is continuously growing in the USA, primarily due to the increased use of technology in transactions, e-marketing, and international communication. Identity theft and related fraud affect businesses, governments, individuals, and communities considerably (Sow et al., 2018). Its effects are traumatizing to the victims. They devastate the victims with long-lasting financial effects. The hospitality industry should keep its eyes wide open for the growing concern of identity fraud, especially since it is the most susceptible industry because it deals directly with clients (Bjorke & May, 2016). Thus, it stores chunks of its customers’ sensitive data (Sow et al., 2018). The hospitality industry should be cautious of this growing concern, since the services they offer precipitate the necessary elements for a successful data breach. This paper analyzes issues arising from identity theft in the hospitality industry. The paper majorly focuses on identity fraud cases, the legal implications of identity theft, and the measures implemented to prevent identity theft in the hospitality industry. It also includes recommendations for businesses in the hospitality industry to help secure clients’ data from hackers and other criminals.

Background of the Problem

The hospitality industry attributes some of its revenue losses to identity theft (Sow et al., 2018). Identity theft refers to a fast-growing social crime that includes all types of crimes that involve individuals fraudulently acquiring and using other people’s data for economic gain. The Federal Trade Commission (FTC) (2018) identifies employment or tax-related fraud, credit card fraud, and phone or utility fraud as the top three identity thefts reported by victims. Companies in the hospitality industry, such as casinos, restaurants, hotels, theme parks, movie theaters, and bars, suffer significant financial losses since the data breaches remain undetected for months or years (Bjorke & May, 2016).

In addition to financial losses, data breaches in the hospitality industry result in loss of trust in the brand, reduced consumer loyalty to a business, and increased cost to customers. Furthermore, a company’s insurance also rises after a data breach to cover cybersecurity expenses that arise after the threat (Bjorke & May, 2016). Additionally, the firm’s cost of debt increases due to reduced creditworthiness caused by data breaches. The company further faces financial losses due to the additional cost to compensate for the investigation of the fraudulent activities (Bjorke & May, 2016). The customers can also sue the business and its employees after a data breach to compensate them for the damages experienced (Bjorke & May, 2016). Consequently, the adverse effects of identity theft result in the failure of some businesses.

Technology use in the hospitality industry perpetuates identity theft, especially since it is getting more advanced every day with new technologies being introduced. Even though advancements in information technology have improved the hospitality industry’s quality of services, they have also created an avenue for identity theft (Shabani & Munir, 2020). The increased usage of e-commerce, communication technology, and computers is instrumental in exponential data breaches due to cyber theft. Information technology contributes to data breach and information loss when the employees gather guest information when offering services and during payments. The hospitality industry is a consumer-centric business; hence, it relies on consumer loyalty to generate substantial revenue. Therefore, companies in the hospitality industry should aim to maintain clients’ trust by implementing security measures that prevent cyber-attacks and data breaches. Ensuring cybersecurity of the technologies that increase the efficiency of services is of paramount significance in the hospitality industry (Hahn et al., 2019).

Companies affected by commercial and consumer identity theft faced more significant financial losses than companies with countermeasures to deal with identity theft (ACFE, 2018). Price Waterhouse Cooper presented data in their 2014 Global Economic Crime Survey that showed 78% of businesses in the hospitality industry faced challenges of identity fraud, which resulted in asset misappropriation (Jirsa, 2020). Iwejor (2017) also indicated that most managers failed to execute the required internal controls and safeguards due to insufficient funds and inadequate knowledge. Consequently, there is a need for additional research regarding the techniques that managers in the hospitality industry should apply to lessen crimes of identity theft and fraud.

Legal Issues

Seven Sentenced in Chicago Restaurant ID Theft Scheme

Joseph Woods, Britain E. Woods, Alex Houston, Jenette Farrar, Essence S. Houston, Kenyetta Davis, and William Washington were the defendants that skimmed personal financial data from consumers in restaurants and attractions sites in the Chicago area (Claims Journal, 2013). The ringleaders paid the employees of various establishments such as Wrigley Field, RL Restaurant, a Chicago Taco Bell location, and a McDonald’s restaurant in Berwyn to steal the credit card information when the customers were paying their bills (Claims Journal, 2013). The employees used a credit card reader device to steal approximately 175 credit cards and banking information (Claims Journal, 2013). The ringleaders used the stolen information to reproduce counterfeit credit cards and make purchases of more than $200,000.

All the defendants pled guilty and were sentenced in Cook County Criminal Court. According to Illinois Attorney General Lisa Madigan, the banks with the accounts of customers whose identities were stolen included Citibank, US Bank, American Express, Fifth Third Bank, Chase, Harris Bank, and Bank of America (Claims Journal, 2013). The compromised financial institutions notified the affected clients to secure their personal information during the investigation (Claims Journal, 2013). The Illinois Attorney General stated that identity theft posed a tremendous threat to Illinois credit card users, primarily since she received approximately 2500 identity theft complaints in 2012 only (Claims Journal, 2013). The complaints included incidents of fraudulent withdrawals from consumers’ financial accounts, fraudulent charges on consumers’ financial accounts, the fraudulent opening of accounts using consumers’ information, and stolen checks (Claims Journal, 2013). Madigan stated that the seven identity thieves’ case proved that identity theft is prevalent in everyday transactions. Therefore, people should be consistent in checking their financial statements and credit card bills for any unauthorized billing and report any unknown and dubious activity early on to prevent extensive damages (Claims Journal, 2013).

Eric Larson Charged with Defrauding Hotels

Eric Larson, the defendant, allegedly stole credit card numbers to book rooms in Newport Beach, Laguna Beach, and Costa Mesa (Parker, 2012). The defendant allegedly paid for his hotel charges at the montage with an illegally acquired credit card. The fraudulent activity was discovered after two days when the bill accrued to $2,134, as reported by the Laguna Beach Police Department (Parker, 2012). Eric Larson used a laptop to obtain the credit card information used to acquire information to book the room from clients who accessed their accounts or made credit card purchases. Apparently, the defendant stole other people’s identities over open Wi-Fi networks by illegally acquiring their credit card account information (Parker, 2012).

The police tracked Eric Larsonto when he left without paying the $2,134 bill at Montage Laguna Beach (Parker, 2012). He was arrested on several identity theft charges reported in Newport Beach, Costa Mesa, and Laguna Beach. He allegedly used the stolen information to rent out for himself and his friends (Parker, 2012). Sgt. Louise Callus arrested one of his counterparts, Edward Richard York, allegedly for possessing methamphetamine and marijuana after receiving a complaint about clients that were abusing drugs in a room at Laguna Cliffs Inn. Upon arresting him, the officers discovered that the hotel room was booked with Larson’s illegally acquired credit card number (Parker, 2012). Larson was charged with 23 felony counts of fraud and theft due to the illegal use of stolen credit card information to book rooms in hotels (Parker, 2012). He was found guilty of the mentioned charges and was sentenced to one year in jail, three years’ probation, and restitution.

Analysis

Under a variety of federal statutes, the Department of Justice takes legal action against cases of fraud and identity theft. Congress passed the Identity Theft and Assumption Deterrence Act in 1998 and made identity theft a new offense (Hill & Marion, 2016). According to the USA Department of Justice, the legislation prohibits knowingly using or transferring an individual’s means of identification without lawful authority. It prohibits the use of the illegally acquired personal information to aid or to abet or commit any violation that comprises of misconduct under any applicable local or state law (18 USC § 1028(a)(7)) (Hill & Marion, 2016). The Act also enabled the Federal Trade Commission to monitor complaints and offer amenities to consumers whose identities were stolen. Failure to comply with the legislation usually results in a maximum sentence of 15 years’ imprisonment, criminal forfeiture of any personal possession used or intended to be used to commit the offense, and a fine (Hill & Marion, 2016).

According to the USA Department of Justice, plans to execute crimes of identity fraud also constitutes violating other statutes such as credit card fraud (18 USC § 1029), wire fraud (18 USC § 1343), mail fraud (18 USC § 1341), financial institution fraud (18 USC § 1344), identification fraud (18 USC § 1028), and computer fraud (18 USC § 1030) (Hill & Marion, 2016). All the federal offenses mentioned above have significant penalties that reach up to 30 years imprisonment, fines, and criminal forfeiture. Furthermore, federal investigative agencies such as the Federal Bureau of Investigation and the United States Postal Inspection Service collaborate with Federal prosecutors to take legal action against identity theft and fraud cases (Hill & Marion, 2016).

Identity theft statutes vary by state, although federal and state criminal regulations govern it (USLegal.com, 2020). The crime does not include falsifying identification to enter into adult business establishments or purchase tobacco or liquor. Information such as Social Security numbers, personal identification numbers (PIN), name, credit or debit card numbers, and date of birth, among others, are protected from misuse by identity theft statutes (USLegal.com, 2020) Hence, an individual who uses another person’s identity with the intent to engage in illegal activities of identity theft may be legally punished (USLegal.com, 2020). This explains why the defendants in the case scenarios provided above were found guilty by the court. However, punishment depends on the number of victims and the total combined loss experienced directly or indirectly by the victim(s) (USLegal.com, 2020). Thus, the defendants may have had different punishments.

Management Suggestions

Managers of companies should be consistent in updating and incorporating cybersecurity tools and techniques to prevent and control data breaches. Besides, all executive and low-level employees should have basic knowledge about cybersecurity tools and techniques in case of any detected fraudulent activities to protect its clients from identity theft cases (Shabani & Munir, 2020). Managers should encourage employees to be careful of the emails and websites they access while at work to prevent data from being breached. For instance, identity thieves can easily steal client information if an employee opens an unsecured email or website due to the lack of knowledge in such regard (Shabani & Munir, 2020). As a result, clients’ data recorded by the hospitality company, such as credit card information and personal details, can be stolen, causing a big disaster for the company. Furthermore, hospitality managers should inform their subordinates not to hand out any sensitive information about their clients and educate them on the repercussions of doing so (Shabani & Munir, 2020). Managers should also establish security measures that restrict access to sensitive files and ensure safe credit card transactions.

Management should also provide secured Wi-Fi instead of unsecured Wi-Fi. The latter is highly liable to attacks from fraudsters. Most hospitality businesses, such as restaurants and coffee shops nowadays provide free Wi-Fi for their customers, which can be accessed in every area in the facilities. The free accessible Wi-Fi enables hackers to monitor clients’ traffic on the Wi-Fi and use it to access the clients’ personal data (Shabani & Munir, 2020). The hackers can also take advantage of the unsecured Wi-Fi to trick customers with malicious “updates” for widely-known software, such as Flash Player, so that they undoubtedly click on the updates that contain malware (Shabani & Munir, 2020). The hackers then use the opportunity to acquire the customers’ passwords, full names, and other vital information from their technological devices. Managers’ negligence to update an organization’s systems makes it easy for hackers to obtain access, mainly since they use ancient programs to acquire confidential information from hospitality businesses.

Fake booking is the most common way hackers acquire guest information in the hospitality industry (Shabani & Munir, 2020). The attackers create a phony website with features of the main hotel’s website that consumers access when booking hotel rooms. When the guests access the phishing websites, identity thieves use the opportunity to collect their personal and financial information. Hotel managers should encourage face-to-face check-ins with the provision of identification documents instead of online check-ins to reduce cases of fraudulent bookings. Identity thieves usually use stolen credit card information to rent hotel rooms; hence, face-to-face check-ins will reduce such crimes. In addition to face-to-face check-ins, hotels can encourage their clients to confirm their identity by using fingerprints to avoid identity theft. This can facilitate this by updating their systems to require their clients and customers to use the feature when accessing their accounts with the business. Besides, hotels can acquire fingerprints of their regular clients to reduce the long process of providing identification documents each time they visit the hotel and store them in their database.

Hospitality companies can also use a web application firewall (WAF) to prevent data breach attacks. The firewall prevents attacks coming from web security flaws, such as security misconfigurations, SQL injections, and buffer overflow by filtering the content of specific web applications (Clincy & Shahriar, 2018). WAF also prevents data theft by detecting and blocking the credit card database when attackers access it (Clincy & Shahriar, 2018). Hotel managers can also secure client data by employing digital certificates since they help provide non-repudiation security service by binding a message to the sender. Digital certificates can also be used by other businesses in the hospitality industry to curb identity fraud since they help to establish the truth by challenging false claims (Clincy & Shahriar, 2018). Businesses can also use digital certificates to ensure the authenticity of their websites to customers. Besides, according to Hathaway et al. (2012), individuals and organizations can curb identity theft by implementing and enforcing cyber-attack laws.

As much as organizations implement measures to prevent the identity theft of their clients, the clients should also be vigilant in protecting themselves. Customers should be careful of the links and updates they click when using public Wi-Fi to prevent hackers from accessing their private information. They should also secure their technological devices with passwords at all times to prevent fraudulent activities. They should also check their bank statements often to keep track of their credit card activities and notify the authorities if there are any irregularities. They should also be careful about the sites they offer personal information and contacts because they might not be legitimate. Consumers should also be careful of the amount of data they post on social media since social media has made it easy for fraudsters to commit identity theft. Individuals’ information such as names, location, personal details, and contact info are available online, which is all the fraudsters need to commit identity theft. Conclusively, customers should secure their financial and banking details to prevent hackers from stealing them.

Introduction

This paper seeks to provide a brief history of some of the key concepts of innkeeper’s laws and as such there is no intent here to provide an exhaustive account of the history of innkeeper’s laws as this would require a much more robust study. The legal subjects affecting hoteliers in the year 2020 are multifaceted and each area has its own history and precedents. This essay is divided into three parts. The first part offers readers an abbreviated history of commercial lodging going back into antiquity and medieval England. This is important in order to help set the stage on why innkeeper’s laws were needed. The second part of the report focuses on the history of innkeeper’s laws which gained traction in Rome and then in post-Roman Britain and eventually migrated to the United States. The basic concept of the duty of care of guests and their possessions will be introduced to readers, a concept which still forms the backbone of innkeeper’s laws to this day. In the last section, several cases from the 1700’s to more recent times will be shared to provide some additional context of existing innkeeper’s laws.

Brief History of Innkeeping and the First Innkeeping Laws

Although it is not possible to determine a precise date when the first commercial lodging establishments appeared, the predecessor of future restaurants and inns, were likely the taverns in ancient Egypt that were popular places to socialize, drink, and eat, and perhaps even places to spend the night¹. Visiting Greeks described in vivid details some these gathering places where much flocking took place along the Nile. The Egyptians were certainly the inventors of beer and were some of the first to cultivate wine as well

Contemporaries to the ancient Egyptians were the Babylonians and there we see the first written instance of innkeeper’s laws, albeit on the food and beverage side. In the Codes of Hammurabi circa 2,000 B.C., inscribed are regulations on the proper management of taverns and inns and strict penalties for the proper preparation of beer.

The popularity of these types of taverns and precursors to inns gained even more traction in Ancient Greece and in Homer’s The Odyssey we first learn in some detail the concept of the lesches (also referred to as leschai), which in Ionic Greek, describes a place where various types of merchants and other tradesmen relaxed and socialized. These places were akin to social clubs and also served as a resting place for travelers and poor people that needed shelter¹. Although these were not inns per se, they were a prelude to future types of businesses which soon evolved into taverns that also provided lodging. Still, the concept of hospitality, irrespective of any commercial enterprise, was a deep-rooted concept in the culture of Ancient Greece. Philoxenia, in ancient Greek signifies acting as a “friend to a stranger” and this concept of being friendly and hosting of strangers was especially important culturally and persists to this day.³ As travel became more common even during the Hellenic Age, providing shelter to strangers in their own home was considered an honorable act and this concept is not foreign to us in modern times.

Having said that, commercial lodging establishments up across Ancient Greece as travel and commerce between city-states intensified. Pandokos Xenostasis was an inn where only guests found lodging, and the phatne or stathmos were dwellings where humans and animals slept in the same place³. Thus, it is in Greece that we may have seen the first commercial inns, but it was not until the Romans conquered much known world at the time that inns became commonplace. However, it is important to note that these establishments were mostly frequented by the lower classes and merchants, and rarely did upper classes or nobility frequent them unless they were on the road and an official imperial lodging was not available.

Overall, Inns and taverns had terrible reputations, and perhaps worst of all was that of the innkeeper. To put it mildly, the concept of a responsible duty of care did not come about for centuries later. Most Inns at the time were notoriously dirty and disease-prone, and furthermore dangerous places where one could either be mugged and killed⁴. As a result, it was in Rome’s bureaucratic world that we see some of the first laws specifically aimed at innkeepers that deal with the care of the guest or their goods. Roman law dictated that innkeepers could refuse to host whom they chose to with the practical reason being that they could be held liable to secure a guest’s possessions and if something happened to those possessions, the innkeeper would have to reimburse those possessions at twice the original value. Thus, innkeepers had to be weary of whom to host for the night as they could be victims of fraud themselves.

Although Ancient Greece and Rome get most of the credit to be forerunners of the inns of the middle ages in Europe, it is important to note that various types of inns were popping all over the world in Asia and the Middle East that predate some of the lodging in Rome

The Medieval English Inn and Beaubeck V. Waltham

Inns were common throughout Europe in the Middle Ages. In the 1300s in Florence, Italy, for example, we find the first innkeeper’s guild. However, it was in Medieval England that we see the development of some of the first innkeeper’s laws that would eventually make their way across the Atlantic to us. According to the Merriam-Webster Dictionary, the word “inn” refers to “an establishment for the lodging and entertainment of travelers” and the lexicology is from the Middle English and Norse signifying a “dwelling” ⁶ These inns were commonly found by the side of the roads throughout the countryside, but also could be found in London. The closest thing we have in modern times to a medieval inn are bed and breakfast establishments. As previously established and it was also the case at the time in England, the primary reason for the establishment of inns was to provide shelter for the night for travelers traveling long distances by foot or horse and especially as travel conditions were difficult and dangerous, especially at night, where travelers risked their lives as they could be robbed and killed. Medieval inns were still comparatively humble establishments and certainly comfort and privacy were not the main priorities. Rather, shelter, warmth, food, and safety were the priorities. Travelers often had to share their rooms and beds with total strangers. In Chaucer’s Canterbury Tales, he describes with some delight the occurrences at the Tabard Inn which housed both humans and their animals on their journey.

The Tabard’s innkeeper, Herry Bailly, was described as a gracious host and his inn as an incredible gathering place for all kinds of people across social classes and although the inn itself no longer exists, the description of the inn is similar to other contemporary accounts of inns in Medieval England⁷. It is during these medieval times in England that we begin to see a clear distinction emerge between taverns and inns. Taverns emerged as establishments mostly for locals to drink and eat and rarely offered an overnight shelter and in fact, after a certain time of night turned out these guests into the street.

On the other hand, in English public houses, or inns, which evolved from private homes, were created specifically to shelter wary and vulnerable travelers and therefore it became understood that the duties of the innkeeper were vastly different than those of a tavern. It is precisely this understanding of the vital responsibility of the innkeeper that we see emerging the first laws in England which would form the pillars of innkeeper’s laws. This heavy burden of having to protect guests and their goods from dangers from the outside of the premises and within is what turned innkeeping into a public calling.

In 1345, William Beaubek brought a suit against John of Waltham, an innkeeper, with the complaint that his belongings were stolen from his room. The facts of the case were generally not in dispute and Beaubek did not recover his goods⁵. The importance of case was vital to the future of innkeeper’s laws because it helped establish a duty of care of the innkeeper for the guest’s goods when they are accepted by the innkeeper for safekeeping and they are aware of the location of the goods. The statement in the suit brought by Beaubeck which would resonate in the centuries to come is “”that every innkeeper is bound to answer to his guests for goods placed under his control.”  The case established a precedent for others to follow in the sense that the innkeeper can be held liable for the guest’s personal belonging when he accepts them into his care. Obviously “into his care” can have a number of meanings and this concept would be litigated throughout the years, but there a clear thread here from the year 1345 to the present whereas an innkeeper can be held liable for the loss of a guest’s items when they are placed in the hotel’s safe, for example.

It is in England and France in the 1750’s that we see the emergence of a new commercial lodging, the hotel, which was considered more sophisticated than an inn and provided more comfort and services⁸. The emergence of these types of accommodations which were being built in city centers as opposed to the side of the road or in small towns also differentiated them from the inns referenced in this essay thus far.

Inns and Hotels in the Americas and Early Innkeeper Court Cases

Some of the first inns in the pre-Revolutionary War period in the Americas were built in the New England and South Carolina areas and were quite similar to the ones in existence the country inns in Britain and were referenced as colonial inns⁶. Although the service and accommodations of these early colonial inns and taverns were sparce and uncomfortable, they improved rather quickly. Innkeepers were considered important leaders of their communities and this made sense since these inns and eventually hotels, were places where important people met and conducted their business.

Hotels soon emerged and were built in the 1760’s and 1770’s in New York, Boston, and other major cities. The industrial revolution both in United states saw an explosion of hotels and with this and increasing number of cases going to court especially in the 1800’s which reiterated some of the common law concepts regarding the duties of the innkeeper to guests and their property. In some of the cases as we shall see below, what constituted and inn, and innkeeper, and a hotel, were important to help settle negligence and even tax cases. Interestingly, US courts based a lot of their legal reasons as it related to innkeeper’s laws on English common law.

Three early cases worth mentioning here are Kisten V. Hildebrand^, Howth V. Franklin, and Cromwell V. Stephens. These cases were important because they helped define some basic terminology related to our inns and hotels which were later cited by other cases in the future. In the Kisten V. Hildebrand case from 1848 which made it to the Kentucky Supreme Court, the innkeeper was sued for negligence for the possessions of the guest which were stolen⁸. The outcome of the actual case (was remanded to the lower court for retrial) is less important than some of the key concepts imparted by Chief Justice Marshall. In his opinion, Marshall begins by defining what an innkeeper was: “A common inn keeper is defined to be a person who makes it his business to entertain travelers and passengers and provide lodging and necessaries for them and their horses and attendants.”⁸ Marshall is unequivocal in his opinion that innkeepers are indeed liable for the loss of the guest possessions while in his direct care and that this indeed because the profession of innkeeping serves an important public function and therefore the duty of care is higher than that of other business owners. Similarly, in 1858 case of Howth v. Franklin⁹ which was at heart a negligence case where the plaintiff was suing for recover for damages of a stolen horse and some other possessions. In the case, the issue of what exactly constituted a person being an innkeeper was important to help determine if the innkeeper’s liability. The court in Texas defined an innkeeper as “An innkeeper is one who holds himself out to the public as engaged in the business of keeping a house for the lodging and entertainment of travelers and passengers, their horses and attendants, for reasonable compensation.” Judge Roberts went on to say that being classified as an innkeeper was a “matter of law” in the sense that if the owner of the establishment comported himself as an innkeeper and frequently accepted travelers to his establishment and made this fact known to the public, then in fact, he should be classified as an innkeeper9. Last, in the 1867 Cromwell V. Stephens Case¹⁰, at issue was whether a building should be classified as hotel or boarding house for tax purposes as the plaintiff did not want to pay the higher taxes associated with the purchases of the property if classified as a hotel. This afforded the court an opportunity to define at length what a hotel is and this definition is similar to the one previously provided earlier in the essay. The case was important as it set some parameters under the law of what constitutes a hotel versus other forms of lodging.

Selected Innkeeper’s Law Cases

In this last section, six historical cases involving inns and hotels were selected as they are often cited cases in the law and the issues are ones that hoteliers still come across in the 21^st Century. The cases are arranged below in chronological order.

The first selected case is Elcox V. Hill¹¹, a US Supreme Court Case from the year 1878. In the facts of the case, the plaintiff, Elcox, who was traveling with some jewelry, checked into the defendant’s hotel in Chicago. A room was not available at the time of check-in, and as he needed to go out to run some errands, decided to leave his two bags, one of which contained jewelry worth $6,300, in the hotel’s coat check area with the attendant. Later on, the plaintiff returned collect his two bags when his room was ready for check-in. The jewelry had been stolen. Elcox sued the innkeeper, Hill, and the jury in the district found in favor of the defendant, but the Appeals Court in Northern Illinois found in favor of the plaintiff. The Supreme Court ruled concurred with the original jury and overturned the decision in favor of the defendant¹¹. On one hand, the court explained that if an innkeeper that knowingly accepts a guest’s valuables for safekeeping, then they would be rightfully be held liable for the loss of the items. However, in this case, the Court found that the plaintiff was negligent themselves because they did not choose to make use the hotel safe to store the jewelry as it was clearly noted on the registration form at the time of check-in. Furthermore, the hotel’s staff was not informed that the guest’s jewelry was inside the bags which were left at the coat check area. Thus, if the hotel did not know they were in possession of the valuables, they could not reasonably be held liable. Having worked in the hotel business for more than 25 years, I can definitely relate to this case. The hotel can not be help liable for these types of valuables when the guest should store them in the hotel safe.

In the case of Curtis V. Murphy¹², a guest checked into the hotel for illegal purposes and engaged in prostitution. Prior to the illegal acts, the guest gave some money for safekeeping to the hotel’s desk clerk which was subsequently stolen. The guest sued the innkeeper to recover the value of the stolen money. The Court decided that ordinarily the guest would be entitled to recover the money from the hotel based on the duty of care afforded to guests by innkeepers, but in this case, since the guest registered under false pretenses and engaged in illegal conduct, they were therefore no longer entitled to the guest/innkeeper relationship and thus the guest was judged not to be entitled to recovering the money he gave the hotel for safekeeping.

In the Nebraska 1905 case of Clancy V. Burke¹³, a guest’s child was injured by an employee’s gun which discharged by accident. This was an important case in furtherance of to the concept that innkeepers owe guests a high level of care while they are on the premises of the hotel. The Court found that even though the injury was indeed an accident and that the child should not have been wandering about the hotel away from the parents, the hotel was still found to be liable as they owed the guest a higher level of safety¹³. This case was subsequently cited on numerous occasions in the future in innkeeper negligence cases.

The potential liability of a hotel in a case where the employee acts negligently was litigated in Lehnen V. E.J. Hines Co.¹⁴. In this horrifying case, as a result of some mishaps, a hotel employee insulted and physically assaulted a guest of a hotel in their room when they were under the mistaken belief that the guest was a trespasser and did not belong in the room¹⁴. Under normal circumstances, a hotel may not be held liable when their employee acts in gross negligence outside the scope of their duties, standard training, or normal job functions. However, in this seminal Kansas case, the Court did find the hotel liable for the employee’s grotesque conduct because at this time of the incident, the employee was acting on behalf of the hotel when they went up to the guest room to evict the supposed trespasser. Thus, although it is generally true that innkeeper is generally held liable for employee’s poor conduct such as theft or beating a guest up outside of the scope of their normal duties, the Lehnen V. E.J. Hines case demonstrates that there are instances clearly where Courts will hold the innkeeper liable for their team’s poor conduct.

In the 1915 US Supreme Court Case of Miller V. Strahl¹⁵, the safety of the guest and the innkeeper’s duty to ensure they are safe when they are under their case was the central matter. In this case, a guest was injured when they were evacuating a hotel that was on fire. The Court found that even though the hotel did not cause the fire per se and not negligent per for the fire occurring, the hotel was nonetheless liable for the injuries sustained by the guest because it was found they did not do everything they could to evacuate the guest safely without injury. In the case, apparently, two hours passed between the time the fire was discovered by a hotel employee and the time the guest awoke (on their own) and tried to evacuate the hotel¹⁵. The hotel’s duty of care especially towards guest safety is delved into by the Court and this case once more affirms the innkeeper’s quasi virtual sacred duty to the safety and well being of their guests. This case brings to mind all of the procedures a modern hotel has to follow (alarms, fire detectors, fire drills, speakers in guest hallways, automated calls to guest rooms, fire exit signs on the back of guest room doors, etc) in order to ensure the safety of their guests in case of a hotel fire.

The last case we will examine for this paper is the case of Hoffa V. United States. In the case, the renowned teamster’s union boss, Jimmy Hoffa, was confiding some illegal acts (the bribing of a juror among other illegal acts) he committed to his associate while in his guest room. It later turned out that this associate was an informant and Mr. Hoffa was arrested based on the evidence provided by the informant¹⁶. Mr. Hoffa contested the charges and demanded to be released under the contention that these 4^th Amendment rights were violated. The 4^th Amendment protects a person’s right to privacy in their home and prevents the government’s unreasonable search and seizure of their home or items in their home without probable cause or a legal warrant¹⁷. So, in most cases, a hotel guest room, which is considered the guests, home away from home, would protect a guest’s 4^th Amendment right insofar as his privacy is concerned and the government would need to present a warrant in order to search the room and legally obtain said information from the guest. However, in this case, the Court ruled that at issue was not really Mr. Hoffa’s 4^th Amendment and instead his poor decision and confide in someone that turned out to be a government informant. The Court visited the topic of guest privacy in the case and the 4^th Amendment and the Supreme Court did affirm the guest room would constitute a valid substitute of a person’s home, thus respecting the guest’s privacy while they are in the guest room insofar as the government is concerned. Other cases deal with the reasonable access that innkeepers must have to the guest room during the guest stay while being mindful of their privacy, but this case demonstrates that if the guest is committing or confessing to illegal acts, that an argument against government intrusion could fall flat.

Conclusions

Innkeeper’s laws are varied as they are old. The subjects not covered in this report range from real estate law, discrimination laws, food and beverage statutes, and many, many more areas of the law. The seminal work by Dr. John H. Sherry in the Innkeeper’s Laws, then revised by his son, John E.H. Sherry provides a good introduction (up to 1981) to all of the different types of areas of the law which can affect a hospitality manager. Having said, the goal as stated previously was to provide a brief introduction and to focus mostly on the innkeeper’s duty of care which forms the foundation of law on this subject. In particular, understanding the innkeeper’s duties of care and when they do apply and when they do not, which may seem instinctive to a good hotelier, is worth understanding in more detail. In a way, there is a long straight line from Roman and Babylonian times to the Middle Ages and finally to the 21^st Century where Courts (real-life) where this duty to care for strangers and take care of them is as relevant to day as it was over thousands of years ago. Some of the key concepts insofar as the law have of course evolved as hospitality products and services have become more varied and sophisticated, but at the root of it all, remains the fundamentals of the innkeeping taking care of people when they are away from home.

One of the most popular USA trends in the Food Industry currently is Non-GMO and Organic Foods. These production techniques and food items are spreading rapidly, not only in the retail markets but also in food service areas. This trend is expanding the customer’s desire to have healthier options to eat, with few ingredients and any items that are considered not natural. There are many guidelines to be followed by the USDA and Federal government to properly sell products as Organic or Non-GMO.

Background on Organic and GMO Food Products

When companies are growing and/or selling Organic products, there is a process they must follow according to federal guidelines. There are many different factors for considering something “organic”. This includes soil quantity, animal raising practices, pest and weed control, and of course the use of additives. Organic producers always rely on using natural substances and physical, mechanical, or biologically based farming methods to the most full extent. Produce can be considered organic if it is certified to have grown on soil that has had no prohibited chemicals or substances applied for three years prior to the harvest. Organic meat regulations require that animals are raised in living conditions that allow their natural behaviors, fed has to be 100% organic, and they cannot be administered antibiotics or hormones.

GMO stands for Genetically Modified Organisms. These are living organisms whose genetic material has been artificially manipulated in a laboratory through genetic engineering. Some concerns overeating foods with GMO are nutritional content, allergic response, side effects of toxicity, organ damage, or gene transfer. Scientifically in the United States, it has been proven that GMO food items do not have a negative effect on the body, but the chemicals can cause an issue for the environment. Non-GMO foods are considered to be more eco-friendly. It has become more of a personal preference that people do not like eating foods that have been genetically modified. They do not feel the need to add extra products into their bodies that they have not added before.

The Organic and non-GMO food market is projected to accelerate over 17% in the upcoming years. Companies are planning on producing more items like non- GMO cereals, liquor, meat, poultry, bakery products, and edible oils. The market is expanding and is expected to see in over 30% of North America due to the competitive market. With schools feeling that GMO based foods are not healthy for children, they are even offering food items that are NON-GMO. A lot of schools and parents label GMO with junk food or decreased nutritional value, so they feel it is better for the students to ban the use of GMO products and junk food, and offer all natural or organic healthy options.

GRAHAM FORSHER, Plaintiff, v. THE J.M. SMUCKER CO., Defendant.

The Plaintiff decided to peruse a class action against the company Smucker because they labeled a peanut butter spread as “all natural”, even though the product contained items that were not “natural”. Natural items are described as products that only contain items derived from ingredients that are not bioengineered or genetically modified. In this case the label on the peanut butter states the products “may contain sugar derived from bioengineered or GMO (genetically modified) beets.” Which can be very confusing for customers when the front label states the product is all natural. The case was dismissed due to the FDA noting that “the new techniques are extensions at the molecular level of traditional methods and will be used to achieve the same goals as pursued with traditional plant breeding”. The beets did contain GMO products but when testing was done, it did not meet the standard of detectable genetic material, therefore it could still be considered natural peanutbutter.

Quesada v. Herb Thyme Farms, Inc., 62 Cal. 4th 298

Quesada filed a class action Lawsuit against Herb Thyme Farms because, they were selling their herb products under an organic label that violated the state consumer protection laws. Indeed, the item they were selling was not actually kept under “organic” circumstances. There are many USDA guidelines to follow if a company is going to sell their products as organic. The federal guidelines include, soil quality, animal raising practices, pest and weed control, and use of additives. Organic Producers rely solely on natural substances and physical, mechanical, or biologically based farming methods to the fullest extent Possible. The case was preempted. Herb Thyme Farms did keep their organic herbs grown separately from their non-organic products, until it came to packaging. During the packaging process everything was brought into one area. The judge felt that it didn’t completely violate the organic food policy but it did indeed limit state organic certification programs. They did tell Herb Thyme Farms that they indeed needed to perform uniform national standard packaging procedures.

Management Suggestions

From the management standpoint there are a lot of things that can be done when selling products that are considered Organic or Non-GMO. Organic products cannot be cooked or prepared in the same un-sanitized work area. If it is, it’s considered contaminated and no longer organic. It would be a very important precaution to take and ensure all cooks, chefs and employees know that standard. Chefs will have to make sure that all products are properly labeled, stored, and cooked in the certified manner of the FDA. If managing a growing or packaging company, that rule would still apply, so when producing or labeling the products, they must not be contaminated with non-organic products.

Introduction

This paper examines the legal issues and how they influence the future prospects for investors in Cuba’s hospitality business. As discussed in the essay, investors wishing to carry out operations in Cuba must consider the relevant issues that relate to at least four critical areas including finance, personnel, government partnership, and dispute resolution. This study highlights the legal issues that could potentially shape the future of the hotel industry in the country by drawing from two major sources. Most of the other resources used in the research are recent – not older than 5 years – and have a direct relation to the current topic of interest.

This note is organized in a way that it tackles a number of key issues specific to the hospitality industry by analyzing the opportunities and growth prospects to provide a general outlook of the Cuban hospitality business environment. From there, the obstacles and challenges in the industry are discussed in brief after which the paper analyzes the legal issues in the industry from the laws and governance issues that need resolution, to the codes and regulations. In this way, it is possible to make recommendations on holistically addressing the future growth opportunities that stand to result from the lifting of the embargo and ending the isolation, in a manner that is both fruitful and effective for the two countries and the international market.

Historical Background

The history of trade between Cuba and the United States dates back to long in the pre-1960 when the United States held major interests in Cuba. However, with the emergence of the Cold War, the Red Scare, and America’s general disregard for communism, this relationship was strained and eventually severed when the United States imposed the trade embargo on Cuba. The embargo and isolation between the two nations were mainly spurred by Cuba’s alliance with the then USSR and other communist countries and events such as the Cuban Missile Crisis. Since then, the two countries have largely remained isolated, the negligible geographical distance between them notwithstanding. In 2015, however, United States President Barrack Obama and Cuban President Raul Castro re-opened diplomatic relations. America still maintains its economic, commercial, and financial embargo. Such restrictions have continued to inhibit free political, economic, and cultural interaction between the two countries.

But while the United States has maintained the blockade with Cuba for over 50 years, the rest of the world continued to interact freely with the country, yet the once vibrant hospitality industry dwindled. The hospitality industry is hailed as one of the industries with the most potential for uplifting and upholding Cuba’s economy. The industry also holds the largest upside for private sector investors looking to tap into the full potential of the business. Determining the legal issues that the hospitality industry faces and analyzing them in the context of their potential impact for the future of the business are fundamental in providing parties involved with insight into the potential future economic benefits for both Cuba, America, and the international markets². The legal frameworks and subsequent challenges for the industry are deeply embedded in the historically tumultuous relations between the two countries.

In hindsight, many authors have provided roadmaps on the possible ways in which the normal relationship between the two nations can be resumed even before the diplomatic changes took effect. These recommendations have also incorporated possible frameworks for building bridges, especially in the Cuban tourism industry. Needless to say, the prospects of the renewed diplomatic relations between the two countries will do little to cushion the hurdles for foreign hospitality and tourism businesses looking to tap into the Cuban market.

Hospitality and Tourism Industry Outlook: Growth and Opportunities

In part, Cuba’s potential for growth can be attributed to the fact that the country is still in the early stages of exploration and development. The country has focused on developing foreign investment and its tourism industry since the 1990s. Currently, tourism is the country’s largest foreign exchange earner after the export of technical and professional services. In 2013, Cuba earned an excess of 1.8 billion CUC from both the domestic and international tourism industry. The country’s hotels and private accommodations (known as casas particulares) offer a wide variety of facilities ranging from pools, hot tubs, spas, dining to massage services, and private chauffeurs. There have been plans to increase the hotel capacity by creating up to 78,000 rooms by 2020. In an attempt to attract more tourists, the country has been diversifying its appeal to various markets. For instance, six golf courses were constructed in an effort to bring in more U.S visitors, high-income tourists from Japan and China, and boost the spending by regular visitors.

The Chamber of Commerce has attempted to appeal to more foreign investors by offering joint venture projects in the past. Melia Hotels International which is a Spanish hotel chain is the largest in the country. The hotel lists 28 Cuban properties owned by either the government or Cuba has lots of opportunities for hospitality with a growing tourism demand. The country is the third most popular tourist destination in the Caribbean after the Dominican Republic and Puerto Rico. The prospective opening of the United States market could lead to significant growth for the hospitality and tourism industry in Cuba. Regardless of the embargo, it remains to be seen whether U.S companies will successfully set up and operate within the legally and politically inhibitive framework of the Cuban market. It is however safe to say that as long as the relationship is built on a foundation of mutual economic benefit, the Cuban legislative framework will evolve to accommodate the new businesses for economic prosperity.

Similarly, the enthusiasm by American businesses and professionals to re-enter the Cuban market will significantly prop development in the country when the opportunity comes. In the same manner, Cuba has a highly literate and educated population that is both enterprising and accommodating to new opportunities. Altogether, these factors play a major role in posing Cuba as a hub of opportunities for the hospitality industry with an enormous potential for future growth and development.

Challenges and Legal Issues

Despite Cuba’s outstanding potential, a majority of foreign companies seeking to do business in the country are still confronted with five major challenges. These challenges include the dual currency system; Cuba’s credit situation; the rampant corruption among the Cuban government officials; infrastructure; and government regulations. Government regulations as a challenge is a broad area and will form the basis of the legal issues as it is closely related to the Foreign Investment Law No. 118; which in turn relates to all the five challenges in the Cuban business environment.

To begin with, Cuba currently operates two different types of currencies in its monetary system: the Cuban Convertible peso (CUC) and the Cuban peso (CUP or Peso).⁵ This system has been criticized as being inefficient and divisive and will likely trouble corporations looking to invest the same way it is both confusing and frustrating to tourists. Secondly, Cuba’s credit crisis and its poor loan system have resulted from its ban from the International Monetary Fund (IMF), World Bank, and Inter-America Bank due to the embargo. The poor structuring of the system has led to transactions being carried out mostly in cash, making it worrisome for foreign investors. The lack of security in the international banking market has deterred foreign investors from conducting business in Cuba.

Thirdly, Cuba, like Brazil, Russia, India, and China (BRIC), has a strong and far-reaching grasp on all industries in the country. BRIC countries are among the most corrupt in the world and Cuba is no stranger to issues of bribery and corruption in the whole government. This situation has kept investors at bay and the prospect of working with state-owned enterprises (SOE) would frustrate foreigners looking for investment opportunities especially in the hospitality industry. Lastly, thriving infrastructure is fundamental to the success of any hospitality industry and Cuba’s infrastructure is dated and decaying. There is a serious need for improvement for tourism and investment to expand into the hinterlands, which will also ensure wealth is distributed throughout the country. Critical areas that will need upgrades include airports, roads, buildings, telecommunications, and internet access.

Cuba has long ranked as one of the world’s most repressive environments for information and communication technologies (ICTs). High prices, exceptionally slow connectivity, and extensive government regulation have resulted in a pronounced lack of access to applications and services other than email. Most users can access only a government-controlled intranet rather than the global internet, with hourly connection costs amounting to 10 percent of the minimum monthly wage. The Cuban government has made commendable steps in expanding the opportunity for international corporations looking to invest in the country through the passage of Foreign Investment Law 118 (hereinafter Law 118). Although the Cuban government has taken several measures to integrate into the current international market, there are several hurdles that still hinder the full success of these efforts. Nowhere is this more evident than in the hospitality industry. The hold that the government has on private institutions is a major and the sector as a whole is the cause of concern. As it is presently constituted, a Cuban citizen is not permitted to start a corporation and as such, any foreign investor looking to do business in the country has to almost deal exclusively with the government. Law 118 permits for three business models namely: joint ventures; international economic association agreements; or capital companies that are completely foreign.

While this law does not in any way explicitly state that hotels will only have the option of international economic association agreements as an avenue of entry, it is the only clause of the three agreeable models that contain the terms “Hotel” and “Service Management.” This particular model is primarily targeted towards improving the general quality of the service industry by allowing internationally acclaimed institutions to expand into the local market. Consequently, this arrangement helps the country to create a name for itself in the international hospitality markets.⁹ In the agreement, the foreign investor acts as a representative of the national investor in the global market.

Pertinent to Law 118, as opposed to sharing profits, foreign investors shall be paid depending on the manner in which they perform. All terms considered including the management agreement, the relationship between the national and foreign investor is seemingly that of a principle and agent respectively. This arrangement is not particularly favorable for foreign investors who would under normal circumstances prefer to have total control and operation/management rights over their businesses. While this model has its fair share of drawbacks, it is clearly the model of choice for investors presently operating in Cuba. Notably, investors that choose this model are accorded several tax exemptions compared to those that operate using the totally foreign capital institution. Even as the prospects of the possible entry of American investors into the Cuban market are increasingly clear, there is a general fear from local people over possible cultural erosion from these foreigners.

Foreign investors entering the Cuban market also have to contend with the strong labor force and the government’s control of the labor. A corporation set up in the country, more particularly the hospitality industry, would not only have to contend with the dual currency issue but also have no autonomy over the hiring, firing, and compensation of its employees. The system curtails the existence of a proper employer-employee relationship from the very onset, which could affect productivity and employee contentment. New corporations will have to deal with a unionized workforce, making it impracticable for American hospitality corporations to hire American nationals to work in Cuba. Besides the cost implications, the primal reason why this arrangement would not work is that the Cuban law requires that foreign business have a direct and positive impact on Cuba and its nationals.

Another significant consideration in the Law 118 is the tax considerations. As compared to law 77, Law 118 completely eliminates the labor tax requirement. The old tax law required investors to part with a 11% and an additional 14% for Social Security contributions, bringing the total labor force tax to a combined 25%. The revocation of the tax is more so beneficial to potential investors in the tourism and hospitality industry which employs about 63% pf the total labor force. Similarly, foreign investors are exempted from paying income tax on their net profits under Law 118’s Article 35. This should be a generous attraction for foreign investors entering the country’s hospitality industry as it allows the corporations to receive all their earnings and dividends which would otherwise be reduced by tax. The income tax exemption should be an attractive offer to expediate and multiply investment in the country if the investors can overcome the current fear and insecurity of doing business in Cuba. In the same manner, Law 118 sets the profits tax of net profits at 15%, which is a 50% reduction from the previously existing regulation. This is in addition to a an initial eight-year exemption period. These provisions combine to present a better return on investment for hoteliers and other service providers in the industry.

In a nutshell, although Cuba has a great potential for future growth in the hospitality industry, its is not possible to immediately gauge the probability of success. The opacity of the country’s economy and political atmosphere makes it difficult to assess success or failure of its foreign investments. However, Melia Hotels International serves as a prospective yardstick of successful foreign corporation in the country with four brands operating under joint ventures and international economic association agreements. In an example of foreign companies running into legal headwinds in Cuba, a suit filed before a U.S labor court alleged abuses in a Cuban shipping and repair company where three Cuban laborers were allegedly forced to work virtual slaves with tedious tasks in the shipyard.¹⁷ The defendant was a foreign company that was operating in Cuba through a contract with the government. Another case of a foreign business gone bad was with Tokmakjian Group, a Canadian company that deals in transportation services and engine repairs. The foreign entity was convicted in a Cuban court on accounts of corruption resulting in jail terms for its top management.

Conclusion

Tourism and hospitality industry opportunities are vital to the improvement of Cuba’s economy and its relationship with America. The hospitality industry in particular is the most critical area in bringing Cuba back into the worldwide business community and developing the nation. Notwithstanding the numerous issues to be resolved, it is obvious that Cuba offers extraordinary potential for future development of global hospitality and the travel industry organizations. Foreign investors must, notwithstanding, think about the legal issues for organizations and determine whether the conditions set by the Cuban government are favorable for their setting and operation. It is envisioned that business regulations will advance as private investors negotiate agreements to give an alluring economic turn of events, however, there is currently no history of steady business development in Cuba. Some of the legal establishments such as the tax provisions in Law 118 are favorable for future growth prospects.

U.S. organizations who wish to do business in Cuba have drastically expanded their activities since the ongoing relations by the two nations’ heads toward setting up normalized relations. Meetings between invested individuals are regular, including lawyers, agents, and developers, in spite of the fact that there is a lack of such private meetings in Cuba. Possibilities for participating in the hospitality and tourism industry businesses in Cuba keep on improving, however, the result is not yet clear. There is a great deal of limitations most of which are based on the legal frameworks that will hamper the hospitality industry from realizing its maximum potential in Cuba. America needs to venture out progressively in restoring the relationship and permitting the hotel businesses the capacity to work in Cuba. Many restrictions have to be relaxed and sanctions lifted through executive order. Ultimately, there is both extraordinary potential and serious pitfalls for entrepreneurs willing to take the risk.

Introduction

This essay analyzes recent legal issues, laws,and decisions that will positively impact the reduction of Food Borne Illness outbreaks in the future. It provides some basic food-borne illness facts and statistics. It provides highlights of the issues, causes, effects, preventions and some history of food borne illness legislation. Additionally, it addresses the thirty-five primary statutes that regulate food safety in conjunction with the activities of Federal, State and Local agencies related to the illnesses. It highlights the most significant recent legislation that made a major forward step in improving the foodborne illness problem, the 2011 FSMA (The Food Safety Modernization Act) as well as recent amendments to food statutes in 2017.

Although the recommendation of experts were included in the 2011 FSMA, which gave the FDA a Congressional mandate as the coordinating entity, and although the system was reorganized and integrated, the shortage of federal, state and local funding still left the system deficient and short of personnel. It therefore becomes incumbent upon individual Food Managers and Chefs, according to some experts, to take the responsibility for food safety upon themselves if sustained improvement is to be achieved. That still makes foodborne illness prevention a daunting task and problem, as most individuals tend to be selfish and self-centered, not humanitarian, charitable or pro bono. Fortunately, everything is relative. The United States still has the third highest food safety record in the world, a position it shares with the United Kingdom. Finally, the essay addresses the present covid-19 global pandemic, which originally started as a food-borne transmission from unsanitary open-air wet-markets in Wuhan, China. Contaminated food from those wet-markets infected local Chinese who travelled from Wuhan and infected the rest of the world. The grossly negligent legal status of China to the rest of the world will be discussed and the alleged financial behind-the-scenes repercussions for China will be touched on.

Basic Food-Borne Illness Facts

The three primary types of food-borne illnesses are norovirus, salmonella and Ecoli, (Andalaro, 2012) and covid-19 started as a food-borne illness. Norovirus, as its name suggests, is a virus that causes the Norovirus food-borne illness. The other three are caused by bacteria. Covid-19 causes pneumonia-type symptoms and is a very much more serious illness. The primary food-borne illnesses (the first three of the four mentioned above) cause inflammation of the stomach or intestines, sometimes called gastroenteritis, or loosely, stomach flu. They are all highly contagious and are typically spread through contaminated food or water. One can also catch it by touching a contaminated surface, and then touching one’s face where the germs would be ingested thus getting one sick. You can also get it from close contact with an infected person.

So the causes of norovirus and other food-borne illnesses are eating contaminated food, drinking, contaminated water, touching your mouth or nose with your hands after they come in contact with a contaminated surface or object, and being in close contact with a person who has the infection. The most common symptoms of norovirus and other food-borne infections are diarrhea, nausea, vomiting, and stomachache. Other symptoms might be fever, headache, or general pain in the body (CDC, 2018). There is no specific medicine to treat norovirus infection, but there are antibiotics that can be used to treat the other three bacterial infections. Medications are generally only used, however, on those severely ill patients who have to be hospitalized. Treatment for the majority of people includes rest and drinking plenty of fluids to prevent dehydration. So the body generally has to heal itself.

The following are the risk factors for becoming infected by food-borne diseases. Eating in a place where food is handled improperly, attending a preschool or child/care center, living in enclosed spaces such as nursing homes for the elderly and convalescents, staying in hotels, resorts, cruise ships,or other destinations with many people in closed spaces, and having contact with someone who has the disease. Cruise ships get the most media attention, but they actually only account for 1% of the cases. Infected food industry workers cause about 70% of reported food contaminated food-borne illness outbreak (CDC, 2018).

There are specific issues that relate to salmonella and Ecoli because of their contamination of chicken in particular and also meat (Business Wire, 2018). All chicken in its raw state, as well as raw meat, is contaminated with Ecoli and salmonella. It is the job of processing plants and the health authorities to keep the concentration of the bacteria at a manageable level. When that manageable level is exceeded, then the librium is broken and outbreaks occur. The Department of Agriculture has created a Salmonella Action Plan, which involves updating the poultry slaughter inspection system and enhancing sampling and testing programs for poultry and meat. The plan’s purpose is to cut the number of Salmonella infections in the United States. The precedent-setting $6.5 million verdicts against Foster Poultry Farms should help coerce all chicken processing plants to clean up their act, stop hiding behind FDA certification and do a better job in food safety.

One can also take care to avoid spreading bacteria to others. Preventive methods are especially important when preparing food or providing care for infants, older adults,and people with weakened immune systems. Be sure to cook food thoroughly and refrigerate or freeze food promptly. Washing your hands thoroughly can help prevent the transfer of salmonella bacteria to your mouth or to any food you are preparing. Wash your hands after you use the toilet, change a diaper, handling raw meat or poultry, clean up pet feces, or touch reptiles or birds (CDC, 2018). To prevent cross-contamination in private kitchens and restaurant kitchens store raw meat, poultry,and seafood away from other foods in your refrigerator or freezer. If possible use two separate cutting boards in kitchens, one for raw meats and the other for fruits and vegetables. Never place cooked food on an unwashed plate that previously held raw meat. Avoid eating raw eggs that are used in cookie dough, homemade ice cream,and eggnog. If you must consume raw eggs, make sure they are pasteurized (CDC, 2018).

Basic Statistics on Food-Born Illnesses

Norovirus the number one food-borne illness is said to affect 19 to 21 million Americans each year, causing 900 deaths mostly among adults aged 65 years and older (CDC, 2020). Additionally it causes 109,000 hospitalizations, 465,000 emergency room visits, mostly in young children, and 2,270,000 out patient visits annually, mostly in young children. Only the common cold is reported more frequently than norovirus. Recent CDC estimates are that Salmonella bacteria causes 1.35 million infections, 26,500 hospitalizations and 420 death in the United States every year (CDC, 2019). Food is the source for most of these illnesses. An estimated 73,480 illnesses due to Ecoli 0157 infections occur each year in the United States, leading to an estimated 2,168 hospitalizations and 61 deaths annually, and it is an important cause of acute rental (kidney) failure in children (Rangel, 2005). The coronavirus (covid-19) disease continues to spread around the world, with over 68 million cases and over 1.5 million deaths as of December 9, 2020 (Elflein, 2020). The United States has been the worst affected with 14,823,129 cases as of December 9, 2020 with 282,785 deaths (Elflein, 2020).

The Current Federal, State, and Local Government Legal Food Safety Situation

The copy of The Constitution of the United States of America that I have which includes Amendments to The U.S Constitution does not seem to contain any legal or other references to food-borne illnesses or any other health-related issues. Other than the very vague term “promote the general welfare,” no other reference seems to exist in the U.S Constitution that specifically addresses any health issue.

The regulations and programs of state and local (including tribal and territorial) governments have been a strong component of the U.S food safety system for the past century. Their key regulatory programs in food safety address food and public health surveillance as well as food inspection and analysis. The U.S Food and Drug Administration (FDA) is responsible for more than 156,008 domestic food facilities (FDA, 2010), more than 1 million food establishments (including restaurants and retail establishments), and more than 2 million farms (Marity, 2009). The USDA (U.S Department of Agriculture) regulates meat, poultry and processed egg products.

FDA’s origins can be traced back to the analysis of agricultural products in the U.S Patent Office around 1848, a function that was transferred to the USDA upon its creation in 1862. The FDA became known by that name in 1930 and was transferred to the Federal Security Agency in 1940, which became the Department of Health, education and Welfare in 1953. Although the FDA is the oldest and most comprehensive food safety agency in the federal government, food safety programs in the states are also of long standing. For example, Florida enacted a food law in 1905, a year prior to passage of the 1906 Pure Food and Drugs Act. Even before that, Massachusetts passed the first general food law in 1784, and in 1850 California enacted “a pure food and drink law” (Durby, 1993). In the United States there are currently 35 primary statutes that regulate food safety along with the food safety activities of Federal, State and Local agencies (NCBI, 2011).

Given the size, complexity, and growth of the food industry in the United States, both domestic and imported, it would be unrealistic to expect the FDA to have enough resources to provide adequate surveillance and inspection of the entire U.S. food supply and to encompass all areas of policy currently overseen by state and local agencies. Criticism has repeatedly been leveled the FDA by organizations and individuals inside and outside the government. The criticism is for the lack of adequate surveillance and inspection of the U.S food supply.

In the above context it becomes clear that the FDA could better leverage its food safety knowledge through improved access to, and utilization of data from state and local authorities. This would be data from food safety inspections, disease outbreaks and product safety investigations, with the resultant enforcement actions.

In 2011 President Barrack Obama signed into law the Food Safety Modernization Act, which put the focus on prevention rather than cure. Previously the system had been largely reactive. The new system became proactive. The passage of the legislation set in motion sweeping improvements to the security and safety of the nation’s food supply. All too often legislators pass laws (or do not pass laws) based on pressure from lobbyists and special interest groups. In this instance most of the recommendations of the experts were followed and the legislation reflects that.

The new Food Safety Modernization Act directs the Food and Drug Administration to build a new system of food safety oversight focused on applying, more comprehensively than ever, the best available science and good common sense to prevent the problems that can make people sick. It strengthens accountability for prevention throughout the entire food system-domestically and internationally. The FDA and the USDA have already established prevention-oriented standards and rules and many in the food industry have pioneered “best practices” for prevention (Hamburg, 2011).

What is new with the FSMA is the recognition that, for all the strengths of the American food system, a breakdown at any point on the farm-to-table spectrum can cause catastrophic harm to the health of consumers and great disruption and economic loss to the food industry. So there is a need to look at the food system as a whole and to be clear about the food safety responsibility of all its participants, and to strengthen accountability for prevention throughout the entire food system both domestically and internationally. Previously only individual states could do food recalls. The new law gave the FDA that right. The FDA for the first time will have a congressional mandate for risk-based inspection of food processing facilities. All high-risk domestic facilities must be inspected within five years of enactment of the law and no less than every three years thereafter (Hamburg, 2011).

Among the improvements is the requirement that importers verify the safety of food from their suppliers and the authority for the FDA to block foods from facilities or countries that refuse FDA inspection. With 15% of the US food supply being imported including 60% of fresh fruits and vegetables and 80% of seafood, that is a major step forward. Very importantly, the FSMA also calls for the strengthening of existing collaboration among all food safety agencies whether they are federal, state, local, territorial, tribal or foreign. Provision was also made for improved training. So the modernization act was four-pronged, stressing Prevention, Inspections, Compliance and Response, Enhanced Partnerships, and Import Safety, along with Training.

Currently under the new reorganized integrated food safety system with the reinvigorated Congress-mandated FDA, the FDA regulates almost everything we eat except for meat, poultry and processed egg products, which are regulated by their partners at the USDA (U.S Department of Agriculture) (Andaloro, 2012). In effectively addressing food-borne illness it is vitally important to understand that food contamination can occur at any level, at any step , and at any time, including on the farm, in processing, distribution facilities, during transportation, at retail and food service establishments, and in the home (Andaloro, 2012).

The FDA is working with federal, state, local, tribal and foreign counterpart food safety agencies. It is working with law enforcement and intelligence-gathering agencies, and with industry, consumer groups, and academia to significantly strengthen the nation’s food safety and food defense system across the entire distribution chain. This cooperation has resulted in greater awareness of potential vulnerabilities, the creation of more effective prevention programs, new surveillance systems, and the ability to respond more quickly to outbreaks of food borne illness (Andaloro, 2012). One of the weaknesses and shortcomings of the FSMA is the lack of funding and the shortage of personnel to effectively, efficiently implement it. That makes it incumbent upon food safety managers, chefs and lawyers to do pro bono work to supplement the funding of the Act (Andaloro, 2012).

In like manner that the original U.S Constitution was not perfect, and 27 amendments were added to improve the original document, the existing food safety statues are likewise periodically upgraded or amended as new information comes to light. The most recent upgrade or supplement was made in 2017 to the 2013 Food Code Chapters (FDA, 2017). A few highlights of the supplementary regulations follow below. A new paragraph was added to address the additional duty requirement for the Person in Charge to ensure employees are routinely monitoring food temperatures during hot and cold holding. A new paragraph was added to indicate separating raw animal foods during storage, preparations, holding and display separate from fruits and vegetables before they are washed. An amended paragraph was added to reflect new cooking time in seconds for ratites, mechanically tenderized and injected meats, comminuted fish, comminuted meat, comminuted game animals commercially raised for food or under voluntary inspection. Cooking time for raw eggs that are prepared to a consumer’s order were increased from 15 seconds to 17 seconds. An amended paragraph requires fish that is reduced oxygen packaged at retail to bear a label indicating that it is to be kept frozen until time of use (FDA, 2017).

A paragraph was added to clarify that a person in charge, or a food employee, may be responsible for taking corrective action when a critical limit is not met (FDA, 2017). A paragraph was added providing a new exception criteria indicating that the regulatory authority may agree to continued operation of a food facility during an extended water or electrical outage. A revised paragraph was added to include plans for the cleanup of vomiting and diarrheal events and that it be written and available. A paragraph was added indicating the availability of EPA registered disinfectant products that are sufficient to inactivate norovirus (FDA, 2017).

An amendment to the law requires that the person in charge must be a Certified Food Protection Manager (FDA, 2017). Revised Personal cleanliness rules were added. Revised Personal Cleanliness guidelines addresses the use of single-use gloves over impermeable bandages, finger cots and finger braces. New rules revised the old ones preventing food contamination from utensils, equipment and linens property stored, dried and handled. A revised Summary Chart was provided for Minimum Food Temperatures and Holding Times Required to reflect updated time/temperature cooking parameters (FDA, 2017).

Precedent setting case for the Poultry Industry and Consumers of Chicken

On March 1, 2018 an Arizona federal court jury returned a verdict in the amount of $6.5 million in favor of a five and a half year old child who suffered a brain injury as a result of a Salmonella Heidelbery infection from chicken produced by Foster Poultry Farms. The case established that chicken producers like Foster Poultry Farms can be held responsible for Salmonella contamination on raw chicken product even through the USDA does not consider Salmonella a per se “adulterant” in raw chicken and even though the bacteria can be killed by cooking the chicken. The case sets an important precedent for food safety.

Foster Poultry Farms argued that because Salmonella contamination is “natural” to raw chicken, it cannot form the basis of liability, regardless of the amount and type of contamination. Further, the company asserted that there was no evidence that the child ever consumed its product because Plaintiffs could not produce shopper card records, receipts, or other direct evidence that they had purchased Foster Farms chicken.

Plaintiffs introduced evidence that Foster Farms’ entire operation was infested with particularly dangerous strains of Salmonella Heidelberg, including the strain that sickened Noah Craten. The jury considered evidence of prior food borne illness outbreaks linked to Foster Farms and epidemiological evidence that Noah Craten was part of a very large Salmonella Heidelberg outbreak identified by the Centers for Disease control (CDC) and other health departments. According to the CDC, 639 people from 29 states were sickened in the Foster farms Salmonella outbreak from March 1, 2013 to July 11, 2014. In what is believed to be the first verdict of its kind, the jury concluded that Foster Farms was negligent in producing Salmonella Heidelberg-contaminated chicken and that, based on epidemiological and microbiological evidence alone, it caused Noah Crater’s illness. The jury attributed 30% of the fault to Foster Farms and 70% to the family members for their preparation of the chicken. The net verdict for the family was $1.95 million.

According to lead trial attorney, Eric Hageman, the verdict establishes a precedent that should change the poultry industry. “Traditionally, Foster Farms and other poultry producers have argued that they are under absolutely no obligation to address even pervasive Salmonella contamination. The jury in this case said enough is enough. Clean up your act.” The jury’s verdict, Hagemon said, “showed that Foster Farms cannot simply hide behind the USDA approval of its chicken”, and was a “rejection of the argument that poultry companies can produce contaminated product and then blame consumers who get sick from eating it” (Business Wire, 2018).

Significant Sarti V. Salt Creek Ltd Case

In the Case of Sarti V. Salt Creek Ltd (Nexus Lexis, 2008) on April 7, 2005, Alexis Sarti and a friend ate at the Salt Creek Grille. They split an appetizer consisting of raw ahi tuna, avocado, cucumbers and soy sauce. Sarti became nauseous and chilled the next day. The day after that she suffered constant diarrhea, fever and chills. Diarrhea continued for the next 10days. By April 19, Sarti was unable to move her legs and was having a hard time focusing her eyes. She was sent to the emergency room. Sarti never completely recovered. She had to use a walker for eight months and to this day retains only about 40 percent of what would have been her normal endurance. She sued the partnership that owns the Salt Creek Grille for breach of warranty.

There was plenty of substantial evidence on which the jury could have found the restaurant not liable. Sarti’s friend who split the appetizer did not get sick. The Salt Creek Grille takes great pains to separate its raw tuna from its raw chicken, including defrosting it in a different place in the walk-in freezer than where the chicken is stored, having the chef use a newly cleaned cutting board for the tuna, and preparing the tuna at the opposite end of the cook’s line from where the chicken is cooked. Chicken is prepared in its own separate room. Different colored cutting boards are used for tuna and chicken, and the same chef does not prepare both items. And Sarti herself worked as a supermarket checker the day she became sick could, at least in theory have picked up campylobacter from a leaking bag of raw chicken she might have scanned.

The jury found the restaurant liable. The jury returned a verdict of $725,000 in economic damages and $2.5 million in noneconomic damages (pain and suffering). The trial judge perceived that the jury’s verdict was based on the inference that the practice of using the same wipe-down rag (or storing raw meat over vegetables, or touching cooked food with chicken tongs that had previously touched raw chicken) had led to cross-contamination from raw tuna.

While I could not find much information on the internet or Lexus Nexus on successful food-borne illness lawsuits, the law firm of Marler Clark, The Food Safety Law Firm, is the nations leading law firm representing victims of food borne illness outbreaks. They claim to have gotten food processors to pay $650 million to their clients in the past two decades (Marler Clark, 2019). So there are obviously many successful food-borne illness lawsuits that have been filed in the last 20 years.

Comparison with Foreign Laws and Standards

American food regulation laws and standards require proactive “regulatory action.” European Union standards are more reactive and simply require ‘efforts” to reduce defects, rather than regulated actions. In spite of this significant difference in the approach to food safety, the United Kingdom, Ireland, France and other European countries are among the top 20 in food safety in the world. Various studies have been conducted in ranking the food standards of different countries, taking into account not only safety, but also quality, affordability and availability. A 2019 study conducted by the Global Food Security Index (GFSI) found the following 10 countries to have the top overall scores for affordability, availability, quality and safety: 1.) Singapore 2.) Ireland 3.) United States (tied with the UK) 4.) United Kingdom (tied with USA) 5.) Netherlands 6.) Australia 7.) Switzerland 8.) Finland 9.) Canada 10.) France.

From these results, The United States scored 99.4/100 for food safety, 100/100 for presence of food safety net programmes, and 100/100 for nutritional standards. The U.S also shares joint third place in the studies’ ranking with the U.K. Whilst they share the same overall score, the U.K scored 100/100 for food safety, 100/100 for presence of food safety net programmes, and 100/100 for nutritional standards. Hence, the U.K and the U.S.A both have some of the highest food standards anywhere in the world. In the third world countries there are far fewer food safety laws, much less strict enforcement and generally much lower standards.

Analysis of issues and Situation with Food-Borne Illnesses

In 2011, the year the FSMA modernization Act was passed, 48 million Americans were said to have been affected, one hundred thousand hospitalized, and thousands killed by food borne illnesses. The estimated population that year was 312.8 million. So, 15.35% of the population was affected by food-borne illnesses that year, a quite significant number of people and a quite significant portion of the entire population. Food-borne illnesses thus pose a huge health issue and problem for the United States. The FSMA was a huge step forward in improving food laws, in improving prevention, enhancing partnerships, better inspections better training and an empowered FDA to intercede in all 50 states in a timely manner to close down infected facilities, recall infected products etc. The amended laws in 2017 further strengthened an already strong, effective system. The United States ties with the United Kingdom in having the third highest food standard in the world.

Despite this relatively very positive, strong food safety scenario, there are still a great many challenges, problems imperfections, flaws, and issues that make it a constant uphill battle. Most people who get food-borne illnesses usually take no special medication, are not hospitalized, and are generally better in three days. Tens of thousands of people, however, still have to be hospitalized, and thousands still die from it.

Norovirus infections are problematic because there is no known cure or medication for Norovirus, the largest cause of food-borne sicknesses. Because all chicken and meats by nature contain Salmonella and Ecoli and most factories tend to be complacent about Salmonella and Ecoli levels, outbreaks can occur at any time (Business Wire, 2008). The causes and sources are hard to narrow down because there are so many links in the food chain. The sheer magnitude of the number of farms, factories, transporters, warehouses, retail outlets and restaurants makes it a daunting task. The sickness spreads like wildfire without people even knowing it is occurring because people who get infected by food-borne illnesses do not show symptoms for 12-48 hours and because it is so contagious. Contagious infected individuals can affect others even after they feel better. Because symptoms appear suddenly, an infected person who vomits in a public place can expose many people. Norovirus contaminated food stays infected even at freezing temperatures. Contaminated food has to be heated to more than 140 degrees Fahrenheit to get rid of the virus. Norovirus stays on food serving surfaces and utensils for up to 2 weeks. Norovirus resists the action of many common hand sanitizers and cleaners (Business Wire, 2008).

Perhaps the biggest problem with the spread of norovirus and other food-borne diseases is the fact that sick employees, particularly in the food industry, continue to work in the days following the outbreak perpetuating the spread of the illness (Garrity, 2017). This situation is worsened or amplified by the fact that the majority of these workers receive low wages and lack paid sick time. Low wage fast food workers will frequently work while sick thus spreading the disease. Food workers are said to cause the spread of 70% of norovirus outbreaks because they go to work when they are sick and get other workers and guests sick.

The FMLA (Family Leave Act) provides eligible workers with twelve weeks of unpaid leave (Garrity, 2017). Because the FMLA excludes short-term illnesses, workers suffering from the flu or stomach flu or similar illnesses still go to work while sick. The HFA (Health Families Act), which would provide employer-provided paid sick days for employees of all businesses of 15 employees or more has never been passed into law (Garrity, 2017). Compared to twenty-two of the richest countries in the world, the United States is the only country that does not provide workers with paid sick days or paid sick leave (Garrity, 2017). This situation makes it much harder to control the spread of the diseases when outbreaks occur, through no fault of the FDA the USDA, state and local regulators or the 34 statutes regulating protecting and controlling the food industry.

With all the forward headway from the 2012 FSMA, a 2019 CDC report indicates that progress in controlling major food-borne pathogens in the United States had stalled with a 15% increase in 2019 (CDC, 2019). While the 2011 FSMA included all of the recommendations of experts, and statutes were significantly amended and upgraded in 2017, the problem goes much deeper according to experts. Legislation alone cannot solve the inefficiencies and inadequacies of the system according to them. (NCBI, 2020)

The Congressional mandate to the FDA gave them the coordinating authority with other positive steps in the right direction as mentioned previously, but the program was not adequately funded and there is a shortage of personnel to implement the program. What is also needed is coordinated leadership with the will and motivation to sustainably accomplish the task (NCBI, 2010). Probono work by Food Safety managers and Chefs needs to supplement the budget shortfalls (Andaloro, 2012). As mentioned previously everything is relative. Despite the constant uphill battle scenario that food-borne illnesses represent, the United States still has the third highest food safety record in the world, which is a quite admirable food safety report card.

Two Real Life Legal Cases

Before entering the masters program I had never worked in the hospitality business and after graduating from the masters program I will not be working in the hospitality industry. I am the assistant general manager of Marelco Ltd, the Yamaha distributer and Yanmar, Cummins and Alison Transmission dealers for the country of Belize. During the 34 years we have been selling machinery even though we have sold thousands of outboards and motorcycles we have only been involved in litigation with customers twice. Approximately 25 years ago a 60HP outboard we sold gave a serious problem during the six-month warranty period.

The majority of the machinery we sell is for commercial use, so the warranty is only for 6 months. Under warranty we are required to repair and not replace engines. Because we did not then have a written warranty contract and we were taken to court, the judge ordered us to replace the engine with another brand new engine. The negative outcome of the court case was the motivational cause for us to spend three months getting legal advice and coming up with a very detailed warranty contract. Since then we have never had to replace problematic engines during the warranty period, only repair them. There have also been three refinements or amendments made to the original warranty contract over the years as new issues arose, and there is another amendment we will be doing shortly in light of the present case we are currently involved in.

We are currently in the middle of the second lawsuit in which two 350 HP outboard motors we sold, this time to a pleasure customer, gave trouble after the warranty period, and they are suing us for the full value of the two outboards even through they were beyond the warranty period and they have two and a half years of use. To further complicate the issue, unknown to us, because we sell so few of that model, the factory had done a recall in the USA on that model to replace a throw out bearing, which we were not notified about by the factory. They just posted it on their Fast Web site. Additionally, they had extended the one-year pleasure warranty in the USA to two years, also unknown to us.

Fortunately, the problem occurred after the official two-year warranty period. The customer who lives in the USA found out about the recall from our senior mechanic who got it from Yamaha’s web site. The previous Service Manager who gave our senior team mechanic unbridled access to Yamaha’s Service Portal on their Fast Website caused the problem for us. The mechanic’s youthful in-experience, had him naively give sensitive information about the warranty recall, which we did not even know about, to the customer before even notifying us. That ended up in the customer suing us for negligence. All mechanics are now only able to see strictly service information and not privileged confidential distributer information on the Service Portal.

The judge has already thrown out the claim on the motor that did not have the problem and has given us and the Plaintiff until December 8, 2020 to come up with an out of court settlement. We have offered either a cash settlement for the remaining useful life of the problem motor, or two new short blocks in which the customer would pay for half the cost (not selling price) of one short block and the entire cost (not selling price) of the other. December 8 will determine if the case goes on, based on just the one problematic motor, or if the out of court settlement will solve the problem.

Covid-19 Bombshell

As mentioned in the introduction, covid-19 originated in the wet markets of Wuhan, China. Contaminated food from the wet markets in Wuhan infected local Chinese who spread it to the rest of the world. Most Americans do not know that in reality there are really two governments in the United States, the elected representatives in the Congress and the White House, and the Federal Reserve System which is an independent privately run entity which regulates the money supply and the economy and which is controlled by an international banking cartel (Stamper, 2008). In reality the Fed is above the law and is a law onto itself. The Federal Reserve Act of 1913 created the Fed. The bankruptcy of the USA during the Great Depression along with the switch from the gold standard to fractional banking in 1933 consolidated the international banking cartel’s control over the Fed (Stamper, 2008). In reality this created a form of economic slavery on the people of the United States.

It is alleged by the people who control the Fed that they have evidence that China was grossly negligent with the spread of covid-19 to the rest of the world. The United States has been the biggest victim of covid-19. China already has the strongest balance sheet in the world. The increased covid-19 debt of the rest of the world would weaken them and further strengthen China, as China is one of the World’s biggest debtors. This is a prime example of the book by Sun Tzu, The Art of War’s, most devious way of winning a battle and a war without striking a single physical blow (Tzu, 2007).

Fortunately, the international banking cartel has proof of what China has done and is holding China accountable. It is alleged that behind the scenes, for china to save face, the G8 will be jointly deducting from china the cost of the covid-19 pandemic along with damages. One can only hope that if that happens it will signal the beginning of the end of communism in China and a better China for its people and the world.

Discussion of Legal Issues from Management View and Management Suggestions for Safer Hospitality Restaurant Food

Because I have never worked in or for a hospitality business, it is hard for me to relate legal issues to a hospitality manager’s job. In the food-borne illness context I think that the United States has one of the best systems of food safety in the world. Indeed the USA’s number three ranking in the world in food safety and other food issues, which it shares with the United Kingdom bespeaks of the intrinsic soundness, quality and effectiveness and basic efficiency of the system.

The 34 statutes that regulate food safety have been well planned, thought out and documented. Every couple of years, improvements or amendments are made to those laws, the most recent amendments being in 2017. The 2011 Food Safety Modernization Act was a major forward step in that it changed the system from being reactive to food issues to becoming proactive in preventing food issues at home and from abroad. The FDA’s Congressional mandate to be the coordinating entity is noteworthy. The combination of good laws, competent federal, state and local entities implementing the laws, and the industry they regulate having paid out to plaintiffs in lawsuits more than $650 million in penalties in the past twenty years should continue to foster one of the best food safety systems and some of the healthiest food in the world.

The recent 2017 food statute amendments gives clues to areas health authorities consider sensitive, relevant and important to food safety. In the hotel restaurant that I would run those practices and procedures would be used to proactively seek to prevent any food issues from occurring to the health detriment of staff and customers alike and to also help prevent any lawsuits against the hotel from occurring. Some of those measures would include putting a supervisor from each shift in charge of food safety. They will get training and get certification as Certified Food Protection Managers. There would be a senior manager and an assistant who would be certified in food safety and in charge of food safety. Each of them would be in charge of each of the two daytime shifts in which food would be prepared and served. They would ensure that there is routine monitoring of food temperatures during both hot and cold holding. Separate holding storage areas would be set up for all raw meat, chicken, fish, and seafood products separate from fruits and vegetables. That would also apply to preparation of those products. In the preparation of all raw proteins they would be thoroughly washed with water, red vinegar and lime before cooking. Different color-coded cutting boards would be used to ensure that cross-contamination does not occur. The 2017 upgraded Time/Temperature cooking parameters would be strictly adhered to. All other major amendments to the food statues would similarly be adhered to with the certified food safety managers in charge of that.

The two food safety specialists would get refresher course each year. In like manner that doctors swear a hypocritical oath, and lawyers swear a lawyer’s oath, the food managers would be made to swear a Food Safety oath pledging to personally supervise ad ensure that all food in their kitchen is of a taste and health standard acceptable for their own family to eat. The significant financial implications of at least two cases similar to the Sarti V. Salt Creek Ltd case would be explained to the food safety managers. The financial reality that their job is on the line if a major lawsuit should occur would be stressed. The fact that the continued financial viability of their employer, the hotel, is on the line should a major lawsuit occur, should bring home the sobering realization to them of the essential necessity to maintain a sustained healthy food standard in the hotel restaurant.

Conclusion

Food-borne illnesses pose a huge threat to the United States each year. Despite the threats many factors contribute to the United States having one of the highest food safety standards in the world. The 34 food safety statutes make a major contribution to that high status along with the recent 2011 FSMA (Food Safety Modernization Act), which followed all of the recommendations of food experts. The Congressionally mandated FDA working in conjunction with the USDA and state and local agencies together with the industry they regulate further enhances’ the effectiveness of the system. An already excellent situation was further enhanced by the 2017 upgraded amendments to the food laws.

The food-borne issue and problem is so complex and large, however, that it is a constant uphill battle to maintain the high standard and keep outbreaks from occurring. Laws alone cannot solve the problem especially when there is a shortage of funding and personnel to keep the system running efficiently and effectively. Leadership, drive and motivation are needed along with pro bono work by each and every food manager and lawyer to supplement the shortfall in funding. The major financial threat of lawsuits should also make a major contribution to keeping the system on track.

Introduction

Food labeling is a relatively new regulation as the Nutrition Labeling and Education Act was established in 1990. There is a strong desire to combat obesity as well as keeping consumers fully aware of what they are consuming and purchasing. To create uniformity the Affordable Care Act enacted in 2010, placed a clause that requires the FDA to regulate menu labeling in restaurants with 20 or more locations under the same name. With the governance of the NLEA on food labeling and section 4205 of the ACA for menu-labeling, there is a plan in place to help America combat obesity.

Food labeling

The Federal Food, Drug, and Cosmetic Act was amended in 1990. It prohibits labeling that is false or misleading which is generally termed misbranding. Congress mandated that certain nutrition information be on packaged food in a specific and standardized way. There are a few countries that have also initiated nutrition labeling, Canada being one of them. The FFDCA and the FDA require that food labels have ingredients, nutrition information and other content in order for consumers to make healthy food choices and avoid allergens or other ingredients that could cause harm. There a are few requirements for food labels. A label should have a nutrition fact panel that shows the serving size, number of servings per container, the number of calories per serving, and what the amount of certain nutrients are like fiber, vitamins, fat, and sodium. They should also include an ingredients list where products are identified by their common name and in order of weight. The information should be in English and the possible major allergens listed.

The FFDCA and the FDA require that if a health claim be stated on a label, it has to be authorized by the FDA. The FDA authorizes the use of claims to be used for 12 relationships that are between a nutrient, a disease or a health related condition. There are several tools the FDA uses to be sure that food labeling is done according to the requirements. Warning letters and meetings regarding regulations are held. They take action when there is a violation by refusing imports, alerts on imports, seizures and court orders requiring the cessation of the violation. There is a desire to create an industrywide system by the American Medical Association and the American Heart Association. This calls for food and beverage companies to comply to the government and other entities to create uniformity.

Food labeling internationally

The European Union does not require that all foods have nutrition labels but it requires that it have health or nutrition claims on labels or on products that have added vitamins or minerals voluntarily. There are a few countries that have implemented voluntary front-of-package labeling. These countries include the United Kingdom, the Netherlands, and Sweden. The United Kingdom’s Food Standards Agency has implemented voluntary front-of-packaging traffic light symbols. Green is for the healthiest food choices, amber is for the less healthy choices and red is for the least healthy. These are rated according to the fat, saturated fat, sugar, salt, and calorie content. Some change has been seen with this system as manufacturers are reformulating products that were unhealthy into healthier products and consumers are making wiser choices.

Endorsed by the Ministry of Health, the Netherlands uses a healthy choice symbol for voluntary front-of-package labeling. The symbols would vary by food. This will be reevaluated every 2 years by an independent scientific committee.

In Sweden, the National Food Administration uses the symbol of a keyhole on voluntary front-of-packaging labels. The criteria for this is that the foods have to be low in fat, sugar and sodium and must have higher levels of fiber than foods that are in a category equivalent to it. The House of Commons’ Committee on Health recommended that Health Canada, which is the health agency for Canada, to have mandatory, simple and standard front-of-package labeling requirements for food that is prepackaged and these requirements should start with the advertising of foods to children. Health Canada has taken a few initiatives, one of them being to have consumer research on front-of-package labeling.

Legislation proposed by The European Commission would make it mandatory for information such as calories, saturated fat, fat, sugars and salt be displayed on the front of packages. Food labels have a large influence on what consumers purchase and that misleading and confusing labels can be difficult for consumers to understand according to the European Union’s Commissioner for health.

Menu-labeling laws

Menu-labeling laws are put in place to help customers make healthier and informed food choices. These laws are also put in place in order to decrease customer confusion and deception. An example of this is that some customers may think that certain menu items are low in calories but in fact they are not. There have been several levels of government that have tried to implement menu-labeling laws. New York had started to enact local laws for establishments that already disclosed and calculated nutrition information of items on their menus. California in 2008 became the first state to regulate the menu labeling at restaurants with locations of 20 or more. New York City has been the subject of more cases that involved free speech challenges and the invalidation of state laws due to Federal laws.

History

The United States has regulated food production and distribution so that customers are aware of what is in their food. The conditions of food preparation were not to standard so a change in regulations were needed. Congress passed the Food and Drug Act which was also known as the Wiley Act in 1906. It regulated food and drug product labeling to ensure that foods were not contaminated with decomposed animal or vegetable products. The Board of Food and Drug Inspection then become the regulatory body of the Wiley Act in 1907. The Board of Food and Drug Inspection became the Food and Drug Administration in 1927. Due to the vague language and inconsistencies found in the Wiley Act, Congress then passed the Federal Food Drug and Cosmetic Act in 1938. This was updated to keep public health safe. This remains the foundation of the regulatory body of the FDA today.

Congress passed the Nutrition Labeling and Education Act in 1990. The NLEA is the body that requires nutritional labeling on all food products under the authority of the FDA. The NLEA helps customers make informed decisions about the food they consume. Though the NLEA oversaw the labeling of foods, it did not include the foods served in restaurants. Because of this, 21 state and local governments have put laws into place requiring large chain restaurants to disclose nutritional information on their menus. This then became more of a national cause as the Affordable Care Act mandated this nationally.

Affordable Care Act

History and Statutes and legislations

The Affordable Care Act was signed into law on March 23, 2010. According to the House Committee on Energy and Commerce, the purpose of Section 4205 is to provide consumers with important health information and will allow the consumer to make a choice and be responsible about what they eat as well as their children. Section 4205 of H.R. 3590 in the Affordable Care Act creates a standard nationally for the posting of caloric information on the menu of chain restaurants and on vending machines. The following are the requirements of Section 4205:

Restaurant chains with 20 or more locations are to post calories on the menu, menu board, drive-through and food display tags. Other nutrition information such as carbohydrates, fat, saturated fat, fiber, protein and sodium should be available upon request. The US Food and Drug Administration (FDA) is the agency in charge of the program. The tasks of the agency is to determine how the nutrition information on the menu is presented. They are to determine the size and type of font to be used on the vending machine displays. Section 4205 takes precedence over local laws which disallows local governments to require more disclosure on menu items.

There is a reasonable standard that Section 4205 includes when it comes to deciding the nutrition information. This gives the restaurants some flexibility in how they determine the nutritional data. They can use means such as cookbooks, lab analysis and nutrient databases.

Dilemma

FDA lack of enforcement on food labeling

The FDA’s efforts of regulating food labeling has been found to be on the decline and stayed stationary. Medical, health and consumer organizations in the US, as well as Europe, are advocating for front-of-package symbol that would help consumers choose healthy foods. This would also help avoid labels that are misleading or confusing. There are a few who have voluntary front-of-package nutrition symbols on food labels.

Some consumers have reported an understanding of certain terms on the label such as sugar or vitamins and they found daily reference values helpful but they still generally found nutrition labeling confusing. There is a difficulty in understanding what role nutrients play in their diets. There is also a lack of understanding in the relationship between sugar and carbohydrates and terms such as cholesterol and fatty acids. Some studies show that consumers do look at the information but there is no further process of it. In 2006, the National Academies’ Institute of Medicine, which advises federal agencies on issues regarding health, reported that little evidence shows that the information on a food label significantly impacts the eating and purchasing of food of consumers. There was a recommendation from this agency to the FDA. This recommendation was to increase research done on nutrition labels and improve on the strategies to use food labels as a tool for education. The American Medical Association’s letter to the FDA in 2007 stated that evidence exists that consumers do have difficulty in making suitable judgements on which foods are healthy.

Effectiveness of menu labeling in restaurants

When posting caloric information on menus, an issue exists that is to be considered. Some consumers do not understand how to use that information provided and underestimate the amount of calories that are in foods. Due to the lack of understanding there is a lack of interest in that information. An IFIC study showed that the serving size information caused confusion for customers. Costumers believed that the information may be inaccurate and did not consider how an individual food item would factor into their daily food intake. The macronutrients are often scrutinized but the serving size and caloric information aren’t considered as much.

Obesity is a large and growing problem in the United States and many health complications and even death result from it. There are over 20 chronic diseases related to obesity some such as diabetes and heart disease. One main issue is that there is an economic burden that comes with obesity. There is an estimate of annual medical spending ranging from $92.6 billion to $117 billion. This shows the enormity of the obesity pandemic. The Congressional Budget Office stated that obese adults have exceeded spending for adults who are not obese by 8% in 1987 and by approximately 38% in 2007. (Closing the kitchen) This is a large increase and is a testament that something needs to be done with the increasing percentages. There is another study that found that obesity adds over $2,800 to medical bills. The taxpayers are then the ones who are responsible for the expenses as medical services such as Medicaid and Medicare are federally funded.

The type of regulation that is needed for food and health is a struggle among Policymakers. There are several examples of changes that have been attempted by the government to combat obesity. Some programs that have been implemented are making exercise mandatory in school, regulating how food is marketed and advertised, and banning transfat. Where tension lies is that an individual has the right and freedom to choose what goes into their bodies. The foods they decide to eat are their personal choice, so as much as the government would like to make lasting changes, this factor will always remain. A balance must be made between the policies being implemented and the personal right to choose what to eat. Policymakers and public health advocates push for restaurants to disclose the caloric value in menu items. The average daily caloric intake is 2,000 calories a day based on the guidance of the FDA. Some menu items are close to or in excess of the 2,000 calories per day. There is a belief that with this information being readily available consumers would make healthier choices and that would result in reduced caloric intake which will then reduce obesity.

On average, 218 restaurant meals a year are consumed by Americans over the age of 8 years old. The trend of eating out is growing. Due to this trend, there is a decrease of consuming milk and vegetables that is typically eaten at home. Restaurants commonly serve portion sizes that are two or three more the size than what is recommended by the USDA which is a cause for concern and can impact the growing fight on obesity. Americans spent 48% of their money on foods outside of the home. This is a significant increase from the 25% that was seen in 1955.

There are four common critiques of menu-labeling laws. One is that there is difficulty in gathering nutritional information for the menus and menu boards. An example given is Starbucks where there is an enormous number of customizable drinks and to have nutritional information for that would be tricky. The second is that the menu-labeling laws are expensive because of costs for testing menu items, which would decrease the frequency of new items. Costs are also from having to print menus and menu boards that show the nutritional information. The costs of these changes would then trickle down to the customer. The third issue is that the larger restaurants feel that the smaller ones should not be exempt from the law. It would most likely be harder for a smaller restaurant to take on the additional costs of updating menus and menu boards. The fourth issue is that the laws will not guarantee the accuracy of the nutritional information. Different laboratories have different standards and because the law doesn’t specify where food should be analyzed, this puts the validity of the information in jeopardy. The problems that could arise are inconsistent labeling which would not fulfill the goal of the menu-labeling law.

Cases

New York State Restaurant Association v. New York City Board of Health

In the case of the New York State Restaurant Association v. the New York City Board of Health, the NYSRA challenged the Board of Health on the grounds of free speech and federal preemption. It was found that the regulations of New York City were preempted by the NLEA and were therefore inapplicable. The court did not find a violation of the First Amendment because rational was found with the city’s desire to combat obesity. The New York City Board of Health did not appeal the decision of the court but made revisions to the regulations. The revisions would require all New York City restaurants with fifteen or more locations the place calorie information on menus and menu boards. The NYSRA then brought another lawsuit to challenge the revised law of the NYC Board of Health. With this the court determined that the regulation was not preempted by the NLEA and the First Amendment rights of the NYSRA were not infringed upon. The decision was appealed by the NYSRA but the Second Circuit Court affirmed that the NLEA does not regulate the nutrition information of food but they regulate the claims of contents of food by the restaurant.

Holk v. Snapple Beverage Corproration

Stacey Holk has purchased several Snapple products over the years. She found that the products were deceptive and that Snapple is unlawful in its practices. A class action lawsuit was filed against Snapple in the Superior Court of New Jersey with the claims on the basis of the New Jersey Consumer Fraud Act, unjust enrichment and common law restitution, breach of express warranty and breach of the implied warranty of merchantability. Holk felt that the labels on the beverage bottle were misleading. Statements such as “Made from the Best Stuff on Earth”, when it was believed that the beverage was not. Another statement that Holk found that was falsely labeled was that one drink was called the “Acai Black Berry Juice” but it did not contain acai berry or blackberry juice in it. She also argued that the Snapple products were not “All Natural” because the products contained High Fructose Corn Syrup.

Snapple filed to dismiss the claim and Holk amended the claim to only state two things, that the labels were misleading on the grounds that it states “All Natural” and that some of the beverages stated it had products in it that were not in the beverages. Snapple filed to dismiss again under the grounds that Holk’s claims were preempted and no claim was stated. Holk then responded to the dismissal with only one claim stating that the label is misleading as it states “All Natural” but they do contain High Fructose Corn Syrup in them.

The District Court dismissed Holk’s claims. The District Court found that the FDA does not have clear language on the definition of natural but it does have language that gives a good perception on the use of that word. The District court then concluded that the FDA with its expertise should set the rules and not the court. They also concluded that the local or state laws imposing additional limitations and requirements would create more barriers to what Congress is trying to accomplish.

The first case showed the issue that lies with the requirements of the law. It is seen that rights are being infringed up and that the main goal of combatting obesity may be loss because of the eternal factors affecting the change. The second case shows how manufacturers must take care and precaution when labeling products as to not mislead consumers. If a product label claims something, the trust a consumer has in the product may be broken if the claims are shown to be untrue.

Studies

Sociodemographic

Low income and minority populations carry the burden of obesity more significantly. Studies have been conducted to show the association between income and how they use caloric information on the menu. One study did show that customers with higher income are more likely to use the information in contrast those who have lower income.

This study was conducted in McDonald’s restaurants that were in neighborhoods with a median household income that ranged from $42,600 per year to at least $70, 000. The participants were asked to complete a survey outside of the McDonald’s restaurant. McDonald’s was chosen because they did have the caloric information of menu items posted on the menu board.

What was analyzed in this study is the sociodemographics of individuals and how they responded to menu selections with calorie information posted. There was an association between those using calorie menu labels and the income of the customer. The customers with annual household incomes of $100.000 or more were more than twice likely to notice calorie information on the menu board than those with incomes less than $50,000 a year.

In order to fill in the gap as to why those with lower income are not using the menu labels, intervention is needed. What was noted was that although the caloric information was posted, it may be helpful to place a statement regarding what the daily recommendation for calorie intake is. If customers are aware of the suggested total caloric intake, they might then better understand the menu item in relation to the meal they will choose. Those who regularly eat at fast food locations are not concerned with the amount of calories in menu items just because it is a fast food restaurant. They aren’t necessarily looking to find healthy eats.

Low income neighborhoods and neighborhoods of ethnic minorities have more access to fast food restaurants as compared to neighborhoods that are predominantly white and higher income. The fast food restaurants are heavily marketed in low income neighborhoods. Age and education were also a factor that influences the choice people make with calorie menu labels. Individuals educated scholastically are more likely to make healthier lifestyle choices such as decreased amount of smoking, exercising, regular health checkups and more likely to read publications on health information. These individuals also had better health in areas of lower body mass index and they also had a low risk of diabetes.

The study also showed a large difference in the total calories purchased from those who used the information on the menu board and those who did not. There was a decrease of 146 total calories purchased when menu labels were used. The use of menu labels can positively affect the choice in menu selections and decrease the number of calories that are purchased by the customers who do use the information. There are only a small portion of people who actually use the menu labeling but there are a large number who do notice the information. Those with a higher income and more educated are more likely to benefit from the menu labeling of calories, which does contribute to the health disparities.

There are a few other studies that focused more on whether restaurant patrons noticed the menu label of caloric information and if it influenced their purchase. Roberto and colleagues did a study dinner where they participants were randomly assigned to order off one out of three menus that had the same items from two restaurants. One menu only listed the items offered, one listed items along with calorie information or one had the calorie information as well as a statement regarding the recommended daily caloric intake for adults. Participants were given a questionnaire and were asked questions in regards to their dining experience. They were to select an item from the menu and they were to eat. What was not consumed was collected to measure the total calories that were consumed. The participants were then asked to recall the food they ate the next day. They found that calorie information did reduce the total amount of calories that people ordered and ate in the meal ordered. It also gave improvement to their ability to estimate the calories that were consumed and it did affect their eating later in the day.

In Elbel and colleagues, survey responses and receipts of customers during lunch and dinner hour were collected. There were four fast food restaurant chains used in this study and they were located in low-income neighborhoods in New York and Newark, NJ. Data was collected before the menu labeling laws were implemented and after. As for Newark, NJ there were no laws in motion. Nutrition information was used from the restaurants website and the amount of calories, sodium, saturated fat, and sugar were calculated. There was an increase in the amount of people who noticed the calorie labeling but this was after the New York law went into effect. Those who did notice the calorie labeling did say that it influenced what they bought but the actual calorie content in what was purchased did not make much of a change.

Bollinger and colleagues collected a year’s worth of transaction data from Starbucks locations in Seattle WA, New York, Boston, and Philadelphia. The purpose of collecting this information was to examine the consumer behavior after the New York law made calorie posting mandatory. What was seen in NY was that there was a 6% reduction in the calories per purchase after Starbucks stated to post the caloric information on menus. This lasted at least 10 months after Starbucks made changes. Coffee sales did not change but the food selections did experience a dip in sales but there was an increase in the purchase of the lower calorie food items.

There are other factors that affect customer menu selections are external cues and emotional drivers that may influence the decision of items chosen. Taste ranked higher than health in studies that looked at what drives customer’s menu selections. The Senior Nutrition Consultant at Chick-fil-A stated that consumers may make changes initially but may ultimately return back to their old menu selection habits. She also states that the challenge is to make healthy food choices state just as good as the unhealthy choices. Customers would not feel as bad when making those purchases.

What happens to food labeling laws if ACA is not active

If the Affordable Care Act was to be void, the decisions on the requirements of restaurants to post nutritional information on the menu would be left to the local governing body. This will then take away the uniformity across the country. The work done in sending the message of combating obesity through healthy choices may not be as impactful. The daily caloric intake has provided guidance on how much you should consume in a day and other initiatives of exercise and healthy lunches in school also helps in sending a message. This message is not complete without combatting restaurants as Americans eat out more frequently than in the past. The local governing bodies would have to create the standard for their jurisdictions.

Conclusion

Applying knowledge to a managerial role

What was learned

The laws in terms of regulations of food purchased by the consumer are always evolving. The federal laws have been put into place to create uniformity across the United States. This in some ways helps the nation realize the severity of the obesity pandemic in this country. In other ways it infringes on the local laws limiting their say so as to how to handle food laws in their jurisdiction. Special attention and care needs to be done to fill in the gap where this new information is not being used in ways it was intended to. This gap is more so on the lines of the “uneducated” consumer who may not know how to read the calorie information or how to apply it positively when making menu choices.

The governing bodies of food labeling in the United States and internationally have taken steps in order to make labeling simple for consumers to use. The use of symbols on front-of-packaging labels make choices easier and it also gives the consumer an opportunity to make a choice. This is important because it allows the consumer to take ownership over their food choices. This is also useful in forcing food and beverage manufacturers to rebrand and reformulate their products to fit the criteria of healthy foods. If there is a clear interest in healthful eating, manufacturers should take note and participate in this mission for better eating habits.

In the role of a manager, there is a responsibility to be sure that your establishment does have nutritional information displayed properly. Another important piece is that staff members should be trained and educated on the nutritional information on the menu. They are not expected to have in depth knowledge but there should be basic comprehension of the caloric information on the menu. Additional nutritional information should be readily available for customers when they request it.

When ordering products or supplying the restaurant with items, implementing change for a healthier menu won’t be as simple. It is helpful to test the customer base to see their response for this new change. Being honest with ingredients is important as you want to gain the trust of the consumer and that they will feel safe eating at your establishment. Complying to laws helps the reputation of your business whether that is making sure items are displayed correctly or that the font and menu colors are clear enough for all customers to understand. There is a long road to resolving the issue with food labeling but with stricter ways of enforcing change and making businesses accountable, and educating Americans, it is possible to reverse the curve.

The History of Food Allergy Laws and Relevant Case Studies

Introduction

Food allergy refers to an abnormal immune response caused by the exposure (usually oral intake) to one or more specific foods, or foods containing a specific food protein, and a series of clinical symptoms.

Food allergies tend to occur in children, especially infants and younger children. Skin, digestive tract, and respiratory tract symptoms are more common. Avoiding foods that cause allergies is the most effective treatment. Food allergies have different incidences due to age, region, lifestyle and allergens. However, the overall incidence of food allergies in children is significantly higher than that of adults, and the overall trend is increasing. In the United States in 2004, food allergies caused 30,000 to 50,000 emergency room cases and 150 to 200 deaths each year.

This article is divided into the following parts: First, introduce the symptoms and causes of food allergies. Secondly, introduce the history of food allergy laws and the development and changes of food allergy laws. Once again, the cases of food allergies in the United States and Europe are introduced respectively. Finally, some preventive measures to deal with food allergies are proposed.

Phenomenon and causes of food allergy

The symptoms of food allergy are related to the pathogenesis, affected organs, and allergens. The symptoms of skin, digestive tract, and respiratory tract are more common. Mild patients generally present with skin and digestive tract symptoms. In severe cases, respiratory and cardiovascular symptoms can occur, and even shock and death can occur. In addition, it can cause ocular and systemic symptoms, such as itching, tearing, conjunctival hyperemia, and arrhythmia. Food allergy is due to exposure (usually oral intake) of a certain food protein, which causes an abnormal reaction of the human immune system, which leads to allergic symptoms. Common food allergens include milk, eggs, fish, shellfish, peanuts, soybeans, wheat and nuts. Genetic factors and environmental factors are the risk factors for this disease.

History of food allergy laws

The law on food allergies is always in development. In fact, since the 1880s, the state governments that moved ahead of the U.S. federal government have begun to formulate food and drug regulatory bills applicable to the state, and Congress has also promulgated individual bills involving butter and imported drugs. However, it cannot be extended to the whole country due to the limitation of the scope of application. The inconsistency of regulatory regulations has not only worsened the domestic food and drug trade order to some extent, but also weakened the competitiveness of US products in the international market, which is also very unfavorable for the food and drug industry. But in 1906, the U.S. Congress passed the Federal Food and Drugs Act, which was the first federal food-related law, and it became the first federal food and drug regulatory law in the history of the United States. This law stipulates that food manufacturers must indicate the ingredients of the food to consumers, and must not add harmful ingredients to food or deceive or mislead consumers. This law gives the federal government certain rights. Although this law does not emphasize that allergen information must be included in food labels, this law is a good start, and it lays the foundation for subsequent laws on food allergy. This law is also a dynamic policy choice made by the federal government after the transition of American society into the industrial age, and it has also effectively strengthened and enhanced the government’s governance capabilities and public authority. It has multiple historical significance.

In 1938, Congress passed the Federal Food, Drug, and Cosmetic Act. This law stipulates the regulations that food manufacturers must follow when producing foods containing certain specific ingredients. Since this law is mandatory, it protects consumers from allergens to a certain extent. This law has been retained for more than 50 years, but because many consumers know nothing about the contents of standardized foods, Congress passed a nutrition labeling and education law requiring manufacturers to list the ingredients of all standardized foods, which is a step forward. step. The FDA issued a consumer guide in 1994 to let consumers understand the hazards of food allergies and possible effective measures when they encounter food allergies. The FDA encourages food manufacturers to proactively declare allergens in food. But the FDA also emphasizes that preventive declarations are not all, and food manufacturers need to take all possible measures to eliminate allergens that may be unintentionally introduced in food.

In May 2001, the U.S. FDA issued a guidance document entitled “Common Food Allergen Labeling and Prevention of Cross-Contact Policy Regulations”, which clearly pointed out that the content required by the Food, Drug, and Cosmetics Act is very small, and there is no technical or technical or technical information in the final product. The label exemption for functional additives does not apply to allergens. Simply put, if a food uses any ingredients, additives, or processing aids that contain known allergens in the manufacturing process, the manufacturer must indicate these allergens on the label. The only exception is allergens contained in seasonings, flavors, and colors. The FDA only “encourages” manufacturers to label them. The document further pointed out that the “may contain” label cannot replace quality management.

Since the policy and regulations were issued in 2001, the FDA, the food industry, the scientific and technological circles and consumers have continued their efforts to legislate for allergen labels. In 2004, the US Congress finally passed the Food Allergen Labeling and Consumer Protection Act (FALCPA). FALCPA has further expanded the label range of food allergens in the form of legislation, clearly stipulating that the “eight categories” of allergens contained in flavors, pigments and trace additives must be marked on the label. At the same time, food ingredients containing “eight categories” of protein derivatives are officially included in the category of allergens. It should be noted that deep-processed foods that do not contain the “eight categories” of protein, such as highly refined peanut oil and soybean oil, are not covered by allergen labels. FALCPA did not make a conclusion on the “may contain” label category, but it requires the U.S. Department of Health to report the current food industry cross-contamination level and preventive measures, and the use of the “may contain” label to Congress within 18 months after the protection law takes effect. , And consumers’ opinions on such labels.

Food allergy cases in the United States

There is a case here. The plaintiff’s father, Mr. Allen, was allergic to nuts. One day in 2019, he bought an apple fritter from the defendant Rickey Meche’s Donut King and brought it back to the hotel room. Soon after he consumed apple fritter, Mr. Allen had a severe allergic reaction. After two days of treatment, Mr. Allen still lost his life. Mr. Allen’s girlfriend, Ms. Senegal, learned from an unidentified Donut King employee that apple fritter contains walnuts.

The plaintiff alleged that the apple fritter sold by Rickey Meche’s Donut King to Mr. Allen caused an allergic reaction and was responsible for Mr. Allen’s death. Donut King argued that apple fritter does not contain any nuts and nut products. Although one of Donut King’s products contains chopped pecans, a series of steps have been taken to avoid cross-contamination. In addition, the US law on allergen labeling requirements only applies to packaged foods, not to bakeries such as doughnuts. Moreover, Donut King has posted a slogan reminding customers that the product contains nuts and milk, and it is not recommended for customers with food allergies.

The plaintiff initially claimed that the apple fritter contained walnuts, but did not taste like crushed nuts, so it later claimed that it might be walnut powder. However, Donut King provided sufficient evidence that walnuts or walnut powder have never been used, and that apple fritter is only made from wheat flour and no nut extract has been used. The plaintiff also alleged that apple fritters may be cross-contaminated because Donut King contains products that use walnuts as fillings, and there is a possibility of cross-contamination. But Donut King gave a document detailing the measures taken by employees to avoid cross-contamination, such as container isolation, separate storage, changing gloves between each individual food, etc., and the employee testified.

The plaintiff further argued that on the day Mr. Allen purchased the apple fritter, whether Donut King’s slogan was posted in an obvious place and whether the employee issued a verbal allergen warning to Mr. Allen were controversial facts. However, the plaintiff did not provide evidence to prove cross-contamination, and there is no direct evidence that Mr. Allen was caused by the allergic reaction due to the apple fritter sold by Rickey Meche’s Donut King. The plaintiff cannot obtain support based on guesswork alone, so the plaintiff’s claims are DISMISSED WITH PREJUDICE.

In my opinion, there are some doubts in this case. First, the plaintiff did not provide a medical diagnosis that could prove the cause of Mr. Allen’s death. If Mr. Allen did die because of food allergies, the plaintiff could obtain a certificate of the cause of death from the hospital, which would be the strong evidence needed for the lawsuit. Second, the plaintiff could not prove that an employee claimed that the apple fritter contained walnuts, and could not even provide call recordings. If there are employees claiming that apple fritter contains walnuts, call records or call recordings are also evidence. Finally, the plaintiff only relied on speculation to file a lawsuit without having any evidence, which was obviously a lack of preparation.

From this case, I learned that if I work in the food sales industry, I must work hard to avoid food allergies. I should provide allergens contained in the food on the packaging of the food. At the same time, if a customer buys food that may contain allergens, I should remind the customer to inform them of the allergens contained in the food. In addition, as a consumer, I should know which foods I am allergic to, pay attention to the allergen information on the food label when buying food, and ask the seller about the allergen contained in the food.

CEC Entertainment, Inc. is the owner and operator of the Chuck E. Cheese restaurant chain. Chuck E. Cheese has a national policy that prohibits foreign food (except cake or ice cream) in its restaurants. In this case, the plaintiff’s son was a person with a medically diagnosed food allergy and a disabled person. Therefore, when eating out, the plaintiff and his son would prepare some of their own meals and bring them into the restaurant. The plaintiff’s son entered a Chuck E. Cheese restaurant chain on November 9, 2013. The plaintiff asked the restaurant manager to allow the plaintiff to bring some safe meals from the restaurant, but the request was rejected by the manager.

In this case, the plaintiff requested the Chuck E. Cheese restaurant chain to adjust its unreasonable policy and abolish the prohibition on taking outside food. The defendant held that the plaintiff’s claim was invalid. First, according to ADA regulations, food allergy is not a disability. Second, the plaintiff’s son was not discriminated against. Finally, the accuser’s son requested accommodation because of food allergies, so it was unreasonable.

According to Title 3 of the ADA, the plaintiff made the following claims: First, the food allergy of the plaintiff’s son is a disability. This is medically proven that if he comes into contact with certain types of food, he may have a life-threatening allergic reaction. Secondly, the defendant operated a public place. Finally, the plaintiff’s son was denied access to the public place operated by the defendant because of his disability. In addition, the plaintiff also claimed that he had also requested some take-out meals in other restaurants, but most of them were not rejected.

The main points of contention between the plaintiff and the defendant were: (1) Whether the food allergy of the plaintiff’s son was a disability. The defendant believes that the ADA stipulates that disability is a physical or mental disorder that severely restricts one or more major life activities, and food allergies do not meet this point. The plaintiff claimed that the ADA regards diet as a major life activity and that the plaintiff’s children will have allergic reactions if they eat dairy products. Therefore, this restricts the plaintiff’s children’s way of eating. Therefore, food allergies are in full compliance with ADA regulations. Disability. (2) Has the plaintiff’s son been discriminated against because of food allergies? The plaintiff believes that the defendant did not allow the plaintiff to bring in external food, and asked the plaintiff and his family to leave the restaurant, which violated the provisions of Chapter 3 of the ADA and resulted in discrimination against the plaintiff’s son. The defendant believed that this did not constitute discrimination. (3) Whether the residence sought by the plaintiff is too broad and unreasonable. The defendant believed that the authenticity of the food allergy claimed by the customer could not be easily verified. If the customer was allowed to bring in any food, it would fundamentally change the nature of the defendant’s business.

After trial, the court found that the plaintiff stated sufficient facts and provided a legal basis. Therefore, the plaintiff’s claim was reasonable and the court rejected the defendant’s request. From this case, I learned that food allergies can be regarded as a disability requiring shelter. If I were the manager of a catering company, I would fully consider the needs of customers with food allergies and provide necessary food for customers with food allergies. The convenience. If I have a food allergy, I will fully guarantee my rights in accordance with the law.

Food allergy cases in the UK

Before the 2000s, few consumers filed lawsuits against the contents of food labels. Since 2003, according to British regulations, allergen information must be included in the label, and the label must be clear enough, easy to understand, and indelible. The labeling law also makes mandatory requirements for the minimum letter height. Since then, more and more people have realized that non-compliance with food labels puts people with food allergies at risk. In addition, for people with food allergies, unpackaged food is even more of a problem. In 2000, a survey in Northern Ireland found that one-fifth of takeaway meals claimed to be suitable for customers with peanut allergies contained peanut protein.

In 2009, Telford sued a trading market in Wellington for improper labeling of imported chocolate. The name of the chocolate is Milka Frühlingsblumen, which is a bar of imported chocolate. The chocolate label does not declare the presence of allergens (almonds and hazelnuts) in easy-to-understand language. The seller was convicted and fined.

On July 5, 2010, a customer bought Aubergine Rollatini Spinach at a deli in Kensington. The customer suffers from a severe nut allergy, so the customer carefully checked the label and found no nut-related logo in it. After the customer bit into it, he immediately realized there were nuts in it. The customer developed an allergic reaction and was treated in the hospital for 8 hours. The customer filed a lawsuit against the food store. Food shops were fined for this. The magistrate said when the sentence was pronounced that the plaintiff is fortunate to have fully recovered, and the consequences of this could have been very different. The defendant’s food store had established a strict food allergy treatment system before this incident, and this incident was considered negligence.

Here is another takeaway case. In 2009, a customer with a peanut allergy wanted a Chinese takeaway to request food without peanuts, but after eating the food, the customer had a severe allergic reaction and had to go to the hospital for emergency treatment. After analyzing the remaining food, it was found that it contained peanut protein. Obviously, this Chinese takeaway shop is responsible for customers’ food allergies. This takeaway restaurant did not provide peanut-free food as requested by the customer, which directly caused the customer’s food allergy. In the end, the takeaway shop was fined and compensated for the loss of customers.

Preventive measures for food allergies

Although food allergens only affect a small part of the population, the potential threat it poses to such specific populations is great. Risk control should start from the source, the supplier, and be implemented in the entire process of production and sales. The focus should be on labeling and labeling management, prevention of cross-contamination, and the establishment of allergen-free cleaning practices.

I learned that as a manager, I should identify allergens and allergen-containing products in accordance with relevant regulations and formulate an allergen identification table. When purchasing allergen-containing auxiliary materials, suppliers should be required to identify allergen materials and distinguish them from non-allergenic materials by means of batch number identification; when the factory receives allergen auxiliary materials, the transport vehicle should be inspected to confirm other Raw and auxiliary materials are not contaminated by allergen and auxiliary materials, and the inspection results shall be recorded; allergen materials and other materials shall be stored separately after storage, and allergen and auxiliary materials shall be marked.

I learned that as a manager, I should first arrange the products in the “Allergen Identification Table” to the last production when making a production plan or during the daily production schedule of the workshop. Secondly, the raw and auxiliary materials containing allergic substances should be marked during the production process and avoid mixing with other raw and auxiliary materials. Allergic tools and instruments must be used exclusively, and other raw and auxiliary materials are strictly prohibited. The waste containing allergens should be protected during the transfer process to prevent running and dripping; the rework of products containing allergens should be carried out in a special place that will not cause cross-contamination; the movement of raw and auxiliary materials will become cross An important source of pollution. When moving raw and auxiliary materials containing allergic substances, protective measures should be taken to prevent cross-contamination of other materials. Finally, in terms of cleaning, after the production of allergen-containing products is completed, all equipment and utensils in the production workshop environment and production line should be thoroughly cleaned and disinfected. The cleaning and disinfection effect should be tested for allergen residues, and unqualified products should be cleaned again until they meet the requirements. Claim.

I learned that as a manager, I should label the products containing allergens and consumer precautions as required when designing product labels. When necessary, conduct allergen-related knowledge and management control training for personnel in relevant positions, improve employees’ food safety awareness and strengthen allergen management.

Conclusion

In recent years, developed countries have imposed stricter requirements on food labeling, and food labeling has become an important means of setting up technical barriers to international trade. Among them, whether the allergen information is clearly marked has also become an important sign for judging whether the food label is standardized. Related food companies must attach great importance to allergy management issues. In addition, with the increasing awareness of consumer rights, cases related to food allergies are also showing an increasing trend. As a manager. The first is to ensure that the raw materials are purchased and stored, and it is clear whether the purchased raw materials contain allergens, and the allergen-free raw materials should be isolated to avoid contamination; the second is to control the production control, rationally schedule production, and rationally use the equipment. Do a good job in postpartum and prenatal cleaning to prevent cross-contamination; the third is to properly label information, carefully study and strictly implement the relevant regulations on the labeling of allergens in food, and make the allergen label clear and clear.

Abstract

Food Allergies are an increasing problem worldwide. Many persons are allergic to various types of food. The region a person is in the world will determine the majority of the food allergens present. Food allergies are extremely dangerous and can lead to severe sickness, death, psychological problems, or substantial medical debt. There are laws in place to help curtail this issue. However, the laws in place are not enough to stop food allergic reactions from occurring on their own. The laws must be upheld and adhered to by the countries’ citizens. This paper will discuss different court cases regarding food allergic reaction outcomes and some of the laws in place in regards to food allergens.

Introduction

Food Allergies are the human body’s negative response to distinct proteins found in food entering the body. The human body thinks that the protein is a foreign invader and begins to attack the food. The attack causes mild to severe responses in a person, leading to sickness ranging from mild illness to death. Persons who suffer from severe allergic reactions known as anaphylaxis usually experience symptoms such as hives, swelling, the closing of airways, difficulty breathing, redness of the skin, itching, and other symptoms. If a person experiencing anaphylaxis is not treated in time, the condition will lead to death. Persons who have food allergies suffer physical symptoms and suffer psychological symptoms due to the stress of having to avoid the allergen.

There is no current cure for food allergies, and unfortunately, the cases of persons with food allergies are rising. Therefore, persons with food allergies must do everything in their power to avoid foods that contain the allergen that they are allergic to. Avoiding the allergen they are allergic to becomes tricky because not all foods being manufactured are correctly labeled. For example, a young woman named Georgina Hickman had a peanut allergy. She bit into a food product that she did not believe had the peanut allergen in it (Baker, 2018). She tried reading the food product label, and the peanut allergen did not appear to be listed. However, shortly after eating the food product, Georgina Hickman died. The food product had peanuts in it, and Georgina Hickman did not receive the medical attention she needed in time to save her life.

Allergic reactions to food can be prevented by making sure that there is no cross-contact between food products that have allergens and food products that do not have allergens or are not supposed to have particular allergens in them. Preventing allergen cross-contact can be done by using separate utensils and equipment for different allergens and for food without allergens, using different processing areas for allergenic and non-allergenic food, preparing non-allergenic foods first before allergenic foods, and properly washing, rinsing, and sanitizing the equipment before using them on other products.

Many people have died from food allergies. The deaths of persons from allergic reactions to food have led to the creation of laws that protect those with food allergies. However, when cases are brought to court, proving liability for causing an allergic reaction to food has not been an easy task or one that is always successful. Although laws have been created to protect persons with food allergies, there are still many areas where they are not protected. This paper will discuss a case where a person experienced an allergic reaction to food and was not protected by the law, and it will also discuss a case where a person was discriminated against due to their food allergy.

International and Local Food Allergy Labeling Laws

To understand the legal issues associated with food allergies, it is essential to understand the laws regarding food allergies in different countries. Since there is no cure for food allergies, one of the best ways to warn consumers that a food product has an allergen in it is to affix a label to the packaging of the food stating which allergen is in the food. In the United States, there is a law called the Food Allergen Labeling and Consumer Protection Act, which requires manufacturers to list the ingredients of a food product and to list the allergens in the food product on the food package label. There are currently eight foods considered major allergens in the United States because they cause 90% of the allergic reactions regarding food (Baker,2018). Those foods are milk, eggs, fish, crustacean shellfish, tree nuts, peanuts, wheat, and soybeans. It is important to note that these are not the only foods that cause allergic reactions.

In the European Union, a regulation called the Food Information Regulation was put in place to include food allergen labeling. Under this regulation, there are fourteen foods considered to be major allergens. Those foods are gluten, crustaceans, mollusks, lupin, eggs, fish, peanuts, soybeans, cow’s milk, nuts, celery, mustard, sesame, and sulfites over 10mg/kg (Baker, 2018). Under this regulation, all food allergens must be listed, and ingredients with unfamiliar names containing an allergen must state what allergen it contains. Also, under this regulation, non-prepackaged food must comply with labeling laws.

The allergen labeling laws for non-prepackaged food was added to the regulations when it was determined that over 70% of allergic reactions occurred from non-prepackaged foods (Baker, 2018). It is important to note that the European Union is the only jurisdiction in the world where allergen labeling is being applied to non-prepackaged foods (Baker, 2018). The United Kingdom (England, Scotland, Wales) follows the Food Labeling Regulations, similar to the FIR followed by the European Union (Baker,2018). The United Kingdom also applies its labeling requirement to both prepackaged and non-prepackaged foods. The United Kingdom has only recently left the European Union. In Austria and New Zealand, they follow the Food Standards Code, in which manufacturers must label prepackaged foods with major allergens (Baker, 2018). Those major allergens are peanuts, tree nuts, milk, eggs, sesame seeds, fish, shellfish, soy, wheat, lupins, or sulfites over 10mg/kg. All of these major allergens must be listed as a direct or indirect ingredient on prepackaged food labels.

Although these countries do not require non-prepackaged food to have labels, they do require food caterers to provide their customers with allergen information. The author defines food caterers as “a person, establishment, restaurant, or other company, who sells or offers food for immediate consumption (Baker, 2018).” Canada’s food and drug regulations also acknowledge major allergens and require manufacturers to list the allergen’s common name. For example, milk cannot be listed as casein, it must be listed as milk (Baker, 2018). The major allergens in Canada are eggs, milk, mustard, peanuts, crustaceans, mollusks, fish, sesame seeds, soy, sulfites, tree nuts, wheat, and triticale (Government of Canada, 2018). Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Mexico, Nicaragua, and Venezuela have labeling laws that recognize the same fourteen allergens as the European Union (Baker 2018).

Japan, Kuwait, Malaysia, Singapore, and South Korea also have labeling laws in effect. Japan has twenty-three allergens on its list but only requires seven to be disclosed. Those seven are eggs, milk, wheat, buckwheat, shrimp, crab, and peanut. According to Japan, they did not include the other food allergens for the following reasons : there are less reported allergic reactions of those allergens; there have not been many severe allergic reactions to those allergens; and scientific evidence does not show that adding them to labels would reduce the allergic reaction numbers (Baker, 2018). In South Korea, the Food Sanitation Act requires twenty-one allergens to be listed on prepackaged food labels. In addition to that, allergens must have a different background from the other ingredients on the label.

In the Current Good Manufacturing Practice, Hazard Analysis, and Risk-Based Preventive Control for Human Food regulation in the United States, specifically 21 CFR 117, manufacturers must prevent allergen cross-contact from occurring in their facilities. Manufacturers must do this by cleaning and sanitizing all utensils, equipment, food-contact surfaces, and non-food contact surfaces. Persons working in food establishments must wear clean garments that will not cause allergen cross-contact. Employees must also follow proper employee hygiene practices such as hand-washing to prevent allergen cross-contact. The law requires food establishments to ensure that allergen cross-contact does not occur when receiving, storing, handling, processing, or distributing food.

The above-mentioned laws are a few examples of the laws that different countries have in place to ensure that allergens are declared on non-prepackaged and prepackaged food to prevent allergic reactions in persons who suffer from food allergies.

Legal Issues

In the Allen v. Delchamps Inc. case, Mrs. Allen was a customer at a grocery store who ate packaged celery hearts and had a severe anaphylactic reaction to them. Mrs. Allen is an asthmatic who is sensitive to metabisulfites. Mrs. Allen did not know that the celery hearts had sodium bisulfite on them. Mr. Allen, who is Mrs. Allen’s husband, had the celery hearts tested at a laboratory and the results determined that the celery hearts had sodium bisulfite on them. The sulfites were not declared on the packaging, and Mrs. Allen was not told that the celery hearts had sodium bisulfite on them when she was shopping at the Delchamps grocery store by the grocer.

The FDA’s Food, Drug, & Cosmetics Act states that sodium bisulfite is unsafe when used on products that are being served raw to customers or are being sold to customers and presented as fresh (Allen v. Delchamps,1993). The celery heart under the Food, Drug, & Cosmetic Act would be deemed adulterated as it had a food additive that is unsafe for human consumption when placed on the raw celery hearts (Allen v. Delchamps,1993).

Delchamps Inc. stated that they only distributed finished products and did not know that the celery had sulfites on them. The plaintiffs were able to show that Delchamps regularly inspects their produce for freshness and quality and did have procedures in place for suppliers to show that they were in compliance with the regulations for insecticides and pesticides (Allen v. Delchamps,1993). In addition, Delchamps Inc. stated that they routinely check “produce for freshness and quality at its warehouse (Allen v. Delchamps,1993).” Delchamps did not show that they did not have the opportunity to inspect the celery hearts. Delchamps did not want to be held liable for Mrs. Allen’s allergic reaction because they said that she is part of a small number of persons who are allergic to sulfites.

In the first case between Delchamps Inc. and Mrs. Allen, Delchamps Inc. was awarded summary judgment. However, Mrs. Allen filed an appeal. In the appeal case, the summary judgment was reversed and remanded. This case is a prime example of how a person with an allergy who has an allergic response to a retailer or manufacturer’s food product is not automatically protected. They have to take the retailer or manufacturer to court, and even if they take them to court, it does not mean they will automatically win. There should be more protection for persons with food allergies who have an allergic reaction for reasons out of their control.

In the case of Hebert v. CEC Entm’t, Inc., a father asked the manager of a Chuck. E. Cheese in Louisiana if his son can bring in a small safe meal when he arrives to Chuck E. Cheese due to his son having severe allergies to dairy products which can result in life-threatening anaphylaxis reactions (Hebert v. CEC Entm’t, Inc, 2016). The manager of the Chuck E. Cheese denied the family’s request and turned the family away from the establishment. However, on multiple previous occasions, the same Chuck E.Cheese location allowed the boy to bring in a small safe meal. The family took the Chuck E. Cheese owner to court.

The family stated that the boy had a disability and Chuck. E. Cheese discriminated against his disability by not letting him bring his small safe food into the establishment. The defendants do not agree that the child was discriminated against. CEC Entm’t Inc. stated that the plaintiffs were seeking an accommodation that was unreasonable (Hebert v. CEC Entm’t, Inc, 2016). The defendants also failed to recognize the boy’s food allergy as a disability under the American Disabilities Act.

The court denied the defendant’s motion to dismiss the case. As explained by the Fifth Court,“​when​ a plaintiff alleges a failure to accommodate, the question to be resolved is “whether the failure to accommodate the disability violates the ADA; and the existence of a violation depends on whether the demanded accommodation is in fact reasonable and therefore required. If the accommodation is required the defendants are liable simply by denying it.”​​Thus, to allege that he has been discriminated against under the quoted definition of discrimination, the plaintiff must allege that he requested a reasonable accommodation that was denied (Hebert v. CEC Entm’t, Inc. 2016).” In this case, the plaintiff did make a reasonable request to bring food for their child as they have done many times before, but the defendant denied it. Thus, according to the Discrimination definition provided by the court, the defendant did discriminate against the plaintiff. This case shows how persons with allergies are not treated reasonably at times. Fortunately, in this case, the plaintiff received justice.

Analysis of Laws Presented in the Cases

Title III of ADA laws says that individuals are not allowed to be discriminated against based on a disability. To make a feasible claim using Title III, the plaintiff must declare that: “ he has a disability; that the place the defendant owns, leases, or operates is a place of public accommodation; and that he was denied full and equal enjoyment because of his disability (Hebert v. CEC Entm’t Inc, 2016).” In the case of Hebert v. CEC Entm’t Inc., the plaintiff stated that the child’s food allergy was a disability because if he comes into contact with dairy products he can have a life-threatening anaphylaxis reaction. Secondly, Chuck E. Cheese is a place of public accommodation. And thirdly, the child was denied full and equal enjoyment because he was denied accommodation and turned away from the establishment. Therefore, the plaintiff was able to successfully use Title III under ADA in the court case.

In the Allen v. Delchamps Inc. case, Mrs. Allen sued Delchamps Inc. “asserting causes of action based on negligence and wantonness, the Alabama Extended Manufacturer’s Liability Doctrine (AEMLD), and breach of the implied warranty of merchantability under ​Ala. Code 1975, § 7-2-314​(Allen v. Delchamps consortium. In order to sue for negligence, the case must meet the following criteria: “the statute must have been enacted to protect a class of persons which includes the litigant seeking to assert the statute; the injury complained of must be of a type contemplated by the statute; the party charged with negligent conduct must have violated the statute; and the jury must find that the statutory violation proximately caused the injury (Allen v. Delchamps Inc,1993).”

The case for negligence per se was met because the grocer did inspect some of the celery hearts and had the opportunity to figure out that sulfite was on the celery hearts but missed that the sulfite was on the celery hearts. The grocer having sulfite on the celery hearts was in direct violation of the Food, Drug, and Cosmetics Act which stated that sulfites cannot be on raw produce due to it being unsafe. All the other requirements of negligence were met also. The AEMLD claim had to show that Mrs. Allen was injured due to being sold a defective product unreasonably dangerous. This was found to be true since sulfite was not supposed to be on the raw produce that Mrs. Allen purchased and Mrs. Allen is suffered an anaphylaxis reaction from the sulfite. The implied warranty of merchant claim had to show that the goods were unfair for ordinary purposes. This was found to be true due to sulfite being dangerous on raw produce and was dangerous to Mrs. Allen since she was allergic to it. Therefore, making these goods unfair for ordinary purposes.

Management Issues and Suggestions

As a Manager, it is important to ensure that reasonable accommodations are made for persons with allergies. Being that a person with an allergy cannot cure their disease, it is up to the establishment (whether it is a restaurant, manufacturing plant, retail store, cruise ship, or hotel) to ensure that they are doing everything in their power to not expose someone with food allergies to the allergen they are allergic to.

An issue that comes up with management, which CEC Entm’t Inc. expressed in the Hebert v. CEC Entm’t case, is that if you allow one person into the establishment with their own food due to their food allergy then everyone else will want to do the same thing. Of course, there is some truth to that, if people see that they are allowed to bring in their own food, they will. However, Managers should put procedures in place to verify that a person has a food allergy. Once it has been confirmed that the person has a food allergy, there should be a procedure for the reasonable accommodations that will be provided. These procedures should be included in the company’s policies for all stores so that there is no confusion as to whether the procedures are accepted or not.

As a manager, if you work in a food manufacturing plant, it is crucial to ensure that all products that are being manufactured with allergens have the allergens listed on their label. Not only is it important to adequately label products, but it is important while manufacturing not to have any cross-contact between allergens. In other words, milk should not be touching eggs if the milk is not intended to be in the final product. Vegetables should not be in contact with wheat if wheat is not intended to be in the final product. Management must make sure that employees are properly washing, rinsing, and sanitizing equipment in the establishment. Management should also implement a system where different allergens are processed in different areas and processed with different equipment and utensils.

In the Allen v. Delchamps Inc. case, Delchamps Inc. argued that the product was already received defective as they do not do any further processing at their establishment, and they receive products in final form. This argument leads to another issue that managers must consider.

Management must consider what will be done in the event that they receive a defective product. Management must inspect products to ensure they are not defective. They should request a certificate of analysis to ensure that products are tested by the laboratory for insecticide or pesticides if necessary. The managers cannot assume the supplier has done all the necessary testing because if there are any issues with the received food products, their establishment will be held responsible too.

Conclusion

In conclusion, food allergies are a major life-threatening issue faced by millions of people worldwide. Although there are laws in place to protect those affected persons, they are not always effective when it comes to proving liability in a food allergy case. There is more work to be done to protect those affected by food allergies.

However, plenty of steps can be taken on management’s end to prevent food allergy reactions in customers. Some were discussed in this paper, but they are not limited to the ones discussed in this paper. More awareness and training on how to handle allergens and prevent food allergen reactions on a global scale is needed. When people are truly aware and knowledgeable about how to deal with food allergens, that is when the world will begin to see change.

Introduction

Animals have always been a large part of day-to-day human interactions. Humans began to domesticate animals approximately 12,000 years ago. They were originally used to provide efficacy to certain functions such as hunting and herding. Over time, however, they began to be used mainly for companion purposes (Butwin, 2019). Dogs are now considered “man’s best friend”, some women proudly dub themselves “crazy cat ladies”, and you can find pigs, chickens, and lambs outside of homes with farms. After World War I, millions of veterans returned home from the war having to manage permanent disabilities. This was the first record of service animals in US history (Butwin, 2019).

This essay analyzes the different laws and regulations established by different government agencies regarding emotional support animals and service animals when traveling. It will examine two court cases to demonstrate the different legal disputes that can arise when dealing with patrons who require special accommodation for travel with service and emotional support animals. This essay will also establish the differences between service animals and emotional support animals. In order to do so, the paper will determine the laws that apply to each category of animal and establish the main differences that allow travel providers the legal ability to allow or deny these animals access to travel.

Historical Background

Emotional support animals (ESAs) are defined by American Humane as “companion animals who help their owners cope with the challenges associated with emotional and mental health conditions (such as depression and anxiety) by providing comfort with their presence” (American Humane, 2018). It is important to distinguish that ESAs are not pets. Unlike pets, ESAs have more access to locations such as restaurants and hotels because they are prescribed by licensed medical health professionals. Unlike service animals, ESAs have no official training and are merely there for companionship and support for their owners. Most any animal that would be considered a pet can be classified as an ESA. This includes cats, dogs, mice, rabbits, birds, pigs, horses, and more (Butwin, 2019).

Service animals are trained to assist their owners with the ease of challenges related to the owner’s physical, psychiatric, sensory, and/or developmental disability. These animals go through long and strenuous training to be able to help their future owners. Some common types of service animal types are guide, hearing, medical alert, mobility, autism service, and psychiatric service animals (American Humane, 2018). Service animals have the ability to accompany their handlers in any public space or facility in which they might be required. The American Disabilities Act protects these animals and their handlers by establishing a set of rules and regulations that must be followed by establishments hosting these types of guests, as well as the guests themselves (Sutton, 2015).

The American Disabilities Act of 1990, also known as the ADA, was created to eliminate discrimination against those who were physically and/or mentally disabled. There are three main titles divided in the ADA in order to protect disabled persons. Title I applies to employees, Title II applies to state and local government, and Title III applies to private entities that serve as public accommodations (Bourland, 2009). Public accommodations refer to places such as hotels, restaurants, theaters, shopping centers, and other places that serve the public. Despite its wide range of coverage, ADA laws do not apply to housing, education or air transportation due to them being governed by other federal statutes. ADA laws are not just enforced by the ADA. In order to obtain full cooperation and to ensure that these rules and regulations are being followed appropriately, other government organizations also enforce ADA laws and work with the ADA to protect disabled persons from discrimination.

Restaurants and other public places have a few things to keep in mind when receiving patrons with disabilities. The first is that ADA regulations overrule any local health department regulations allowing the facility to ban animals from entering their establishment. This means that if a guest with a service animal (these rules exclude emotional support animals) enters into a public establishment, they cannot be turned away or denied service. The staff of the establishment is only allowed to ask two questions to disabled guests with a service animal. The first is “Is this a service animal required because of a disability?” and “What work or tasks is the animal trained to perform?”. Anything further, like asking the disabled person to prove their disability is permitted. Restaurant guests can also not be separated from other patrons when dining. The public establishments are not the only ones responsible for following ADA laws and regulations. Patrons are also responsible to make sure that they and their service animals are compliant. If a service animal uses the restroom in the middle of the establishment or if the service animal eats from the table, the public establishment is well within their rights to ask the patron and their service animal to leave (National Restaurant Association, 2019). It is also important for guests to be mindful of how long they leave their service animal unattended. For example, a guest visiting a hotel that is not taking their service animal with them somewhere must make sure to put the animal in a crate or periodically check on them to make sure that they have not causer damage to the room. (Army Public Health Center Animal Health, 2016)

Analyzation of Cases Dealing with ADA Law

Summary of Case: McDonald v. Department of Environmental Quality

The first case this paper will be analyzing is McDonald v. Department of Environmental Quality (DEQ). In this case, the respondent, Jamie McDonald was hired by the DEQ as one of their fiscal officers in their financial services division in August of 2002. McDonald suffered from dissociative episodes which caused her to space out, leave tasks incomplete, and lose track of her surroundings. She also suffered from depression and a permanent leg injury sustained in a car accident. As a result, McDonald had a service dog named Bess to assist her physically and emotionally. As time went on and winter approached, Bess began to slip and slide on the tile floors in the building where McDonald was employed. McDonald called CARES, the agency that trained and placed Bess as a service dog. When McDonald informed them of the situation, they advised McDonald to have Bess practice on similar floors in order for her to become acclimated with walking in the DEQ building. McDonald practiced with Bess over the weekends at establishments with similar floors. The result was unsuccessful, so McDonald attempted to put booties on Bess’s feet. That also turned out to be unsuccessful. In March of 2003, McDonald requested that DEQ install floor coverings on the ground floor that lead from her office to the elevator, restrooms, and building entrances to prevent Bessie from slipping and falling. DEQ submitted a request to the General Services Division for extra floor mats, yet no further action was taken.

In July of 2003, a “condition inventory” of the building was issued by Doug Olson, the General Services Division facility manager. In his inventory, he noted that the ground floor of the building become slippery when it is wet and suggested that carpet runners be installed as a solution. In September 2003, McDonald sent an email to Virginia Cameron, the human resources manager for DEQ. In that email, she requested that as per the American Disabilities Act (ADA), she would like full length runners to be installed in the ground floor hallways of the building.

Cameron forwarded this request to Olson but received no response. Cameron reached out to Constance Enzweiler, the ADA specialist for the Department of Administration. Enzweiler then reached out to the federal Job Accommodation Network (JAN). In November 2003, Cameron met with McDonald to see if where the carpet runners were installed would be good enough. McDonald said that she would attempt to use them but did not think that they would be adequate enough because the area she covered was much smaller than she had originally requested. In January 2004, Bess fell again, but this time she sustained an injury to her neck. Bess needed treatment for a cervical disc disease due to the fall. When she was being examined, it was also noted that she had arthritis in her shoulders and excessively long toenails. Bess was physically limited due to this fall. McDonald attempted to get more adequate floor runners inserted, however she was told that the general services department would not pay for them. In 2004 Bess fell a third time, causing McDonald’s to have to leave Bess at home. McDonald attempted to make a request one more time and again was met with no result. McDonald resigned in August 2004 to accept a higher paying position. McDonald filed a disability discrimination complaint with the Human Rights Bureau of the Department of Labor and Industry (DOLI) (McDonald v Dep’t of Envtl. Quality, 2009)

Verdict & Analyzation

The DOLI hearing examiner ruled in favor of McDonald and awarded her damages in the amount of $26,869.84. DEQ attempted to appeal the decision made by DOLI. The case was presented to the Human Rights Commission (HRC). Due to only four of the five of the HRC members being present (one member had recently resigned), the vote was split and HRC decided to uphold the decision made by DOLI. McDonald was ignored and overlooked in her request to get accommodations for her and her service animal. This case was included to show the importance of employers making accommodations for their employees with disabilities. Travel and lodging businesses should take heed and learn from the experience that DEQ had with not making an effort to make those accommodations for their employee. Part of ADA regulations for employees is that they are entitled to accommodations that will allow them to do their jobs with ease. When DEQ ignored McDonald’s multiple requests to add a proper floor covering that would allow McDonald’s and Bess ease of access to the building, they were discriminating against McDonalds. ADA Title I protect employees against discrimination, specifically in this case by not providing the necessary accommodations allowing the service animal to do their job well. The DEQ could argue that Bess already had arthritis and had long fingernails which could have contributed to the severity of her injuries. The result of the verdict, however, shows that it is better for employers to make sure they are making reasonable accommodations for any disabled employees. (McDonald v Dep’t of Envtl. Quality, 2009)

Summary of the Case: D.E. v American Airlines

The second case that this paper will review is D.E v American Airlines. In this case, the plaintiff, D.E. is alleging claims of negligence, negligence per se, intentional infliction of emotional distress and negligent infliction of emotional distress against American Airlines. On October 21, 2016, a travel agent for the plaintiff’s employer booked a ticket for the plaintiff to travel in November 2016. The plaintiff adv the travel agent that she would need extra leg room because she was traveling with her psychiatric service animal. When the reservation was made, the travel agent chose 9B, which had extra legroom at the plaintiff’s request. Four days before the flight, the plaintiff called the American Airlines reservation department and requested that her seat be changed to a bulkhead window seat. Her call was connected to an American Airlines Special Assistance Coordinator (SAC). The department handles requests for passengers with disabilities. While waiting for further contact from the SAC, the plaintiff sent in a signed copy of an American Airlines “Emotional Support/Psychiatric Service Animal Authorization Form” along with a handwritten note to discuss further accommodations needed.

The next time there was contact between the SAC and the plaintiff was the day before the plaintiff’s flight. The SAC department called the plaintiff but received no answer and left her a voicemail. Later that same day, the plaintiff checked in for her flight. After reviewing the seating information, she contacted the SAC department. She was told that because she had already checked in, she would need to speak to the local airport personnel for her request to be fulfilled. The plaintiff spoke with a supervisor from the SAC department who noted that he advised the plaintiff that her concerns for her support dog had been documented and that she would need to report to a local airport personnel in order for her request for a bulkhead window seat to be fulfilled. The day of her flight, the plaintiff arrived at the airport and went to the ticket counter where the agent informed her that seat was 9B and that she was unable to change it to the seat she requested (7A) because it had been assigned to another passenger. The agent was said to be impolite when the plaintiff attempted to explain that the reason for her requesting the seat reassignment was due to the need for accommodation due to disability. Another American Airline’s employee offered the plaintiff a bulkhead aisle seat and a regular window seat which the plaintiff declined. At the flight gate, the plaintiff was reassigned to the bulkhead aisle seat and she boarded the plane. Once onboard, the plaintiff asked the passenger in the bulkhead window seat if they could switch and the passenger agreed. The plaintiff moved to the bulkhead window seat. An American Airlines employee asked the other passenger if they would be willing to move to another seat to allow the plaintiff and her service more space for the flight. The passenger agreed and the seat next to the plaintiff was left empty for the rest of the flight. No oneat American Airlines ever questioned the plaintiff and her right to bring the service animal onto the aircraft (D.E. v. Am. Airlines, Inc., 2020).

Verdict & Analyzation

The plaintiff brought the claims of negligence, negligence per se, intentional infliction of emotional distress, and negligent infliction of emotional distress against American Airlines (defendant). The defendant’s filed a motion for summary judgement on all presented claims. The court held a hearing on the defendant’s motion where the plaintiff admitted that her second claim for relief alleging an intentional infliction of emotional distress should be dismissed. The court found that there was no breach of the defendant’s responsibility to the standard of care set forth in the Air Carrier Access Act (ACAA). The plaintiff also did not oppose the defendant’s motion for summary judgment on the claim for intentional infliction of emotional distress. Therefore, the court grants the defendant’s motion. The US Department of Transportation released a brochure covering what is required and can be asked of patrons traveling by air with service animals. It includes information like “An airline is not required to upgrade you to a different class of service to accommodate your animal” and “Your animal must be permitted to accompany you in the space under the seat in front of you” (U.S Department of Transportation, 2020). All of the things listed in this brochure were followed by American Airlines. This case was included to show the importance of following all protocols and maintaining the same standard of care as the rest of the industry. American Airlines employees followed their procedures properly when assisting the plaintiff. If anyone had skipped a step or been proven to have mistreated the plaintiff and her service animal, the outcome would have been very different (D.E. v. Am. Airlines, Inc., 2020).

Discussion of Laws/Act Application

As mentioned previously in this paper, there are some distinct differences between ESAs and service animals. The main one being that ESAs have no training and are strictly for emotional support, while service animals go through extensive training and aid their owners with physical tasks. ESAs for a long time have been seen as a “hoax” and have even been dubbed as “fake service animals” (Wlodarczyk, 2019). This also causes a lot of confusion and leaves a lot of room for discrimination against ESAs. Despite the confusion, there are laws and acts that apply to both service animals and ESAs. One of those acts is the Fair Housing Act (FHA). The FHA “prohibits discrimination in housing and is administered by the Department of Housing and Urban Development (HUD)” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). According to the FHA, any species of animal can qualify and establish that an animal must provide a disability assistance and is more than just a pet. The FHA states that an animal can qualify merely by “providing emotional support that alleviates one or more identified symptoms or effects of a person’s disability” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). Another act that includes ESAs and service animals within their set of regulations is the Air Carrier Access Act. “The Air Carrier Access Act (ACAA) prohibits discrimination aboard airplanes and is administered by the Department of Transportation” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). It uses the term “service animals” to describe the animals under which the laws apply, however the phrase encompasses both service animals and ESAs (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020).

There are rules, however, that apply to service animals that do not apply to service animals due to the typically extensive training that service animals must undergo. One big set of laws that separate the difference between service animals and ESA’s is the American Disabilities Act (ACA). The ADA clearly states that “first, only dogs and miniature horses can qualify as service animals. Second, the animal in question must have been individually trained to perform a task related to the owner’s disability. This training need not be particularly extensive or even professional; in theory, owners could train the animal themselves at home” (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020). Unlike guests with ESAs, who can be asked to present proof of documentation, guests with service animals cannot be pressed for certain information about whether or not the animal is required (Carroll, Mohlenhoff, Kersten, McNiel, &; Binder, 2020).

Conclusion

This paper’s goal was to analyze and discuss the differences and the importance of both ESA’s and service animals. Through the analyzation of two different cases regarding service animals and emotional support animals, this paper was able to identify the importance of each animal group to their owners as well as the appropriate and inappropriate ways for public establishments and travel entities to handle guests with service animals. By discussing the different laws and acts that apply to both animal groups versus one over the other, this paper was able to establish the difference of the two animal groups and how they are able to be handled when entering a public/ travel entity. In the travel and lodging industry, it is a very high possibility to encounter a guest with a disability. In order to protect the guest and the business organization, it is important to understand what laws apply to what type of animal group, and what rights the business organization has when encountering a guest with one of those animal groups. This paper has successfully outlined some of these rules and has given options as to what can be done to prevent discrimination in the future.