Category: Blog

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.

Introduction

This paper analyzes the importance of resorts being corporate socially responsible and how it affects environmental issues. Some environmental problems that will be discussed throughout the paper are conservation of water, waste management, energy conservation, and sustainable guest experiences. This paper will clearly define corporate social responsibility and why it is essential to the hospitality sector. I will discuss CSR’s main components, including being discretionary, ethical, legal, and economically socially responsible. The law review that will be evaluated in this essay is the National Perspective on Mountain Resorts and Ecology, 26 Vt. L. Rev. 515. This law review will answer one of the legal questions: how can hotels incorporate legal regulations of environmental problems? The case Massachusetts v. EPA, 549 U.S. 497 describes the importance of staying up to standard with regulations because it can cause negative impacts on the environment. The case will also present the legal repercussions of not following environmental laws.

This paper is divided into four parts. First, a description of CSR and the environmental issues essential to incorporate in any hospitality business. Following that, the background of the law review and the law case. Also will describe the impact of both law case decisions and how they affect the hospitality industry. Lastly, recommendations will be presented to help better companies be sustainable and minimize the chance for legal disputes.

Corporate Social Responsibility

Being corporate social responsibility refers to corporations’ policies and practices to positively influence the world and environment. CSR’s primary focus is to include the best business practices that are pro-social objectives while maximizing profits. Many companies view CSR as an integral part of their brand image, which assumes that customers are more likely to be

drawn to businesses that are perceived to be more ethical. The main components of CSR include being discretionary, ethical, legal, and economically socially responsible. Discretionary social responsibility means providing your companies time and resources to contribute to the community as a whole. This is directly related to the company’s brand image and how it’s meaningful to them. This could include employees volunteering, donating money, service, or charitable organizations. Ethical social responsibility consists of the following legal procedures and being ethically right in all aspects of a business. A company must ensure an ethical workplace while being able to see how the industry impacts the environment. Next is being legally socially responsible, including paying the right taxes, meeting financial obligations, adhering to labor laws, and being overall environmentally safe. Lastly, economic, social responsibility means being profitable and sustainable enough to start giving back. Sustainability includes making a profit for shareholders, paying its employees a fair wage, paying business taxes, and meeting other financial obligations. A corporation can show economic responsibility by being transparent with all stakeholders about the business’s financial status.

CSR also includes sustainable operations within a hotel, which directly affects environmental issues throughout the world. A significant sustainable process includes using waste management, which provides water conservations, energy conservation, sewage treatment, and much more. A sewage treatment plant ensures that no grey water or raw sewage is discharged into the sea. Water conservation is essential because it lowers the consumption of water. Some hotels use a rainwater catchment system that filters and stores rainwater in guestrooms and around the property. Some companies also use a desalination plant that converts saltwater into freshwater, suitable for human consumption. Next is energy conservation, where facilities use eco-friendly light bulbs to optimize natural lighting, uses of solar panels, and more.

 

Many businesses incorporate nature conservation and protection, which consists of monitoring wildlife and preserving the marine ecosystem. These operations help reduce the consumption of materials created and provide the business with a carbon footprint. Environmental issues can lead to despondency: species extinction, deforestation, desertification, toxic waste, acid rain, global climate change, and severe air and water pollution in large cities and emerging countries.

Historical Background

Corporate law is the body of rules, statutes, regulations, and practices that govern businesses’ operations and formation. Legal debates over corporate social responsibility stretch from the 1930s to the twenty-first century. The traditional discussions over corporate social responsibility revolve around whether the directors and managers of large, publicly held corporations should have a legal duty, when making decisions for the corporation, to take into account not only the needs of the shareholders but also other groups affected by the corporations’ actions, such as its employees, customers, or the communities in which they are based. The first debate over CSR was in 1931, where A.A. Berle and E. Merrick Dodd discussed corporate managers’ responsibilities that owed the stakeholders and others directly influenced by the corporation. Next, I will describe the law review that focuses on how the ecosystem is affected within ski resorts and the legal associations created to protect the land.

National Perspective on Mountain Resorts and Ecology, 26 Vt. L. Rev. 515

The purpose of this legal review is to indicate the United States ski industry’s relationship with its ecosystem. Next, it will determine the Ski industry’s environmental outputs and provide good examples to follow. This review also suggests ways for associations and resorts to reduce their environmental impact. When looking at the ski industry profile, we see that it has been steady for the past twenty years. For example, in the winter of 2001-2002, the number of skiers and snowboarders was 57.3 million people and increased. Due to the popularity of skiing increasing, we see fewer smaller resorts and see more large resorts. Ski areas that at one point were on the bottom of the hill have grown up to the mountain peaks. For instance, trails are cut at higher altitudes going through ecosystems to reach better snow. Sometimes these vast ski resort expansions can displace the character of these rural mountain communities. Today many ski areas are finding ways to reduce any adverse effects that happen with their building. Many trails are not clear cut but instead use gladded paths, which have less burden on the ecosystems. Climate change and global warming has impacted the ski industry and will continue to do so. Due to this vast impact, ski resorts should maximize their efforts to reduce environmental effects resulting from their operations. The NSAA in 1999 presented an open process for stakeholders to help create sustainable slopes that make a ski area environmentally responsible for designing, planning, construction, and public outreach. Sustainable slopes include twenty-one principles designed for ski areas to follow or provide options for getting to that level of CSR.

An excellent example of leadership in action is the Aspen skiing company. They use wind power energy for their lifts, and their building is in regulation with the US Green Building Council’s Leadership in Energy and Environmental Design certification requirements. There is a wide variety of government organizations that are protected by the law to help with sustainability. One of these organizations is the U.S. The Department of Energy intends for businesses to use supplies of clean and affordable energy. “DOE’s research and development programs are producing cutting-edge technologies that can play an integral role in your community’s sustainable development efforts-for example, technologies that make buildings 50% more energy-efficient, that help industries prevent pollution, and that produce electric power from clean, renewable resources.”

My first recommendation for action is providing better leadership to help expand the environmental program, with more information about environments, workshops, training, and marketing. The NSAA should develop a council that helps advise on strategic planning, evolving priorities, and implementing environmental programs. My second recommendation is to increase the power of the public. The public needs to insinuate the demand for superior environmental performance from the NSAA and through a local level. A sustainable slope also needs to achieve a high level of performance, which can be enticed by having an incentive and rewards membership. Sustainable Slopes need to go beyond total values and conservation of energy, waste, and water. It should develop inventories for habitat, species, forests, and wetlands, and conservation quantities for those indicators. A big part of any organization is setting goals that are meant to be achieved in the short and long term.

Legal Issues

Environmental law explains the regulations, statutes, local, national, and international legislation, and treaties. This law is designed to protect the environment from damages and explain the legal consequences of these damages. Environmental law covers the protection of ecology and the health of the environment. The first and most predominant way of seeing environmental law is pollution. There is the enforcement of air standards determined through pollutants emitted through the motor vehicle and industrial processes. Some of these laws are directly focused on placing limitations on these emissions. For example, the DMV requires emission tests for annual vehicle safety checks.

Containment cleanup, prevention, and mitigation directly deal with legal issues of negligence. Regardless of whether such a pollutant leak is avoidable or unavoidable, necessary laws determine what is required of the responsible party. The team accountable for the cleanup should ensure that contamination is first limited and controlled and then removed from an environment to avoid longer-term or large-scale damage. Regulations can also include liability, response, determine the investigation process, monitoring before, during, and after cleanup, and the risk assessment of long-term effects. Any workplace is required to be educated and knowledgeable about the safe use of chemicals. There are chemical safety laws that govern how establishments use these chemicals or which chemicals they shouldn’t use. This means correctly storing chemicals, application of safety equipment, and licenses of storage containers. Waste management laws are governed through laws that enforce transportation and storage and proper disposal and treatment procedures. There are state, federal and international laws that state what we can and cannot do to water sources concerning water quality. Water quality laws concern releasing pollutants into any water body, be it surface water, drinking water supply, water table, rivers, seasons, and oceans. Next, I will be explaining the effects and issues of global warming.

Global Warming

The first legal issue to address climate change was in 19992 when the United Nations Framework Convention on climate change took place. This connection was the stepping stone in law-related topics dealing with global warming, but it was still struggling to make federal, state, and regional laws. The first report to entice attention on an international level was the 1990 Assessment Report, which described greenhouse gas emissions. This report showed how greenhouse gases affected the earth’s surface’s substantial warming, which was beyond natural occurrence. Six leading greenhouse gases contribute to global warming, but the main gas is carbon dioxide. In the United States, the main human activities that create greenhouse gases are transportation, power generation, industry, agriculture, and commercial buildings. Overall, the increase in greenhouse gases is caused by the entire economy, which means everyone has a part in global warming and must reduce the issue. In December 1997, the UNFCCC created a binding contract from 37 industrialized nations and the European community to reduce GHG emissions to an average of below the 1990s level. These nations agreed to make nation-specific targets to reduce GHG emissions in the summer of 1997, the U.S. On a 95-0 vote, the Senate created a resolution that opposed any treaty that failed to have duties to help reduce GHG emissions. This protocol is put into three mechanisms: emission trading, clean development mechanism, and joint implementation. Nowadays, we have a vast amount of laws for climate change. One of the more recent laws is the Consolidated Appropriations Act that renews tax credit programs for wind and solar electricity generation. It also incorporated a phase-out schedule for these support programs that provide stability for the renewable energy market. Overall, global warming is a pressing issue affecting everyone globally, and it is vital to continue to find new ways of reducing our emissions and creating sustainable practices. In the next section, I will be overviewing Massachusetts v. EPA, a crucial case that started implementing global warming laws and regulations.

Massachusetts v. EPA, 549 U.S. 497

I will first describe the background of the case; some private organizations filed a petition that asked the Environmental Protection Agency (EPA) to regulate the emissions of the four greenhouse gases, which include carbon dioxide in the § 202(a)(1) of the Clean Air Act. This clean air act depends on the EPA to provide standards that apply to any pollutant emission from motor vehicles. The EPA stated the action did not authorize to make mandatory regulations to address climate change, or even if they had the authority to set greenhouse emission standards, and they wouldn’t. The Agency further characterized any EPA regulation of motor-vehicle emissions as an approach to climate change that would conflict with the President’s comprehensive approach involving additional technological innovation support. Two of the judges agreed with the EPA that they properly exercised the denying of the rulemaking petition. However, one judge concluded that the exercise of judgment could be based on scientific uncertainty and other factors. The second judge stated that the petitioners hadn’t provided any personal injury necessary to establish a standing, which the court denied for a review.

Global warming is one of the most pressing environmental issues of our time. Even though global warming affects our planet in every way, the government doesn’t address it enough. Petitioners have come to the courts because they are unsatisfied with the elected branches’ progress. The legal question that is presented is, Does anything require the administrator to make a “judgment” whenever a petition for rulemaking is filed? By a 5-4 vote versed the D.C. Circuit and ruled in favor of Massachusetts. Justice John Paul Stevens stated that Massachusetts had the standing to sue EPA over potential damage caused to its territory by global warming. The Court rejected the EPA’s argument that the Clean Air Act was not meant to refer to carbon emissions in the section giving the EPA authority to regulate air pollution agents. The majority ruled that the unjustified in delaying its decision based on prudential and policy considerations.

The result from the case was that greenhouse gases from mobile sources were considered air pollutants. Under the CAA, the EPA was obligated to “cause or contribute to air pollution which may reasonably be anticipated to endanger health or welfare.” In May 2010, the EPA and National Highway Traffic Safety Administration created regulations for GHGs from cars and light trucks under Title II of the Clean Air Act. With the GHG emissions being regulated by the CAA, the EPA had new interpretations of the Clean Air Act. The EPA implemented and promulgated regulations for sources under the new source performance standards and recent source review. Developed from the Clean Air Act of 1963, the Clean Power Plan establishes state targets for reducing carbon emissions and offers a flexible time frame for states to achieve those targets.

As a manager, it is essential to understand the importance of environmental sustainability practices. As a manager, you must be educated to motivate employees to participate in these sustainable practices. When being educated, you can also guide the managers to decide which environmental policies are suitable for their hotel. For a business to become more sustainable, a manager will also need help from associations or the government to provide education and training. The manager must entice their employees when they try to get them to engage in sustainable development. The sustainable development strategy will be adaptable due to each business because the location, property, and staff are different. An essential factor is communication from a manager because a sustainable development strategy must be well prepared. The goals must be communicated to the ownership, management company, and executive committee. This allows stakeholders to invest and support the sustainability movement. To a management company and shareholder, sustainability provides property costs and generates revenue and brand image. The triple bottom line keeps them focused on delivering profit while helping the community and environment to the employees and management. As a manager, I would want to start with a PowerPoint that demonstrates what sustainability is about, what countries are currently doing with this matter and show CSR initiatives in large and well-known corporations. I would also want to incorporate how local authorities or businesses are including sustainability within their establishments. To display such a strategy’s seriousness, include it in the property’s mission statement and values and introduce it to potential employees during the interview process to trigger a conversation and engage the employees from the beginning of their association to the hotel. It is also essential to get feedback from your employees by asking what they would like to see benign added to the property strategy. Recognition is necessary by celebrating and communicating internally and externally. To achieve sustainability in any business, everyone must want to participate and be involved with the process. To keep employees engaged, it’s crucial to develop new ideas to implement and new ways to recognize individuals for succeeding.

Conclusion

Corporate social responsibility and having sustainable business practices are important ways for businesses to give back to the world while getting returns on investments. Global warming continues to become a substantial problem throughout the world as we continue to grow and industrialize. There is a vast amount of environmental issues caused by global warming, and we must help in every way we can. Businesses and individuals need to be following ecological laws and doing their part to help reduce greenhouse gas emissions. From a legal standpoint, in this paper, we could see why it is vital to keep people liable for being environmentally safe. Environmental laws must stay in effect while adapting to new issues or new developments in technology.

Introduction

This essay analyzes how the legal decisions that have affected the environment have also impacted resorts. Environmental Laws and Rules help prevent resorts from having uncontrolled growth that may lead to harmful environmental impacts. These laws can help regulate the planning of any new resorts and the use of facilities and water treatment plants. Since environmental issues have come from all counties and industries they have been addressed by all levels, international, national, and local laws and policies.

Background

All around the world, there are major discussions about the impact human activity is having on the environment and how they are responsible for climate change. So many groups are strongly advocating for laws to protect the environment, which can have some impact on different industries including resorts. Humans have impacted the physical environment in many ways such as overpopulation, pollution, burning fossil fuels, and deforestation. The hospitality industry may not be among the industries that are considered the largest contributor to environmental issues around the world, they still play a part. For many people, anything that can be done to improve is a step in the right direction therefore any laws that help are important. The hospitality industry employs 10% of the population, therefore striving to be more environmentally conscious can have a major impact on the world (Kirk, 2016). It can help by not only reducing the negative impact on the environment but create awareness in the population. The main impact the hotel industry as a whole can have on the environment are things like CO2 and CFC emissions. Hotels can also have a large amount of energy, water, and food waste. An important factor to consider is how the industry disposes of its waste. The location of a hotel can also impact the environment because it can affect the ecology and natural resources surrounding it.

International Actions

Although some of the international movements and policies are focused on other industries such as oil and gas, every industry is impact by secondary and tertiary effects. Some international treaties that impact the environment and every industry are the Montreal Protocol of 1987 and Climate Change Convention of 1992. The Montreal Protocol focused on eliminating the production and consumption of products that were causing damage to the ozone layer. These ozone depleting substances could be found in refrigeration, fire suppression, and foam insulation so it affected the hospitality industry because they needed to take into account the need for new products that minimalized these effects which can have financial implications. Climate Change Convention of 1992 addressed the overall health of environment because many countries around the world all agreed to lower carbon dioxide emissions (EPA, 2020).

National Policies

The Clean Water Act of 1972 established a way of regulating discharges of pollutants into the waters of the United States. It also created a standard for the quality of surface waters and made it against the law to discharge any pollutant into waters without permission. This directly affects a resort because they must make sure to control where wastewater, sewage and other waste goes. They also have to consider that there are pesticides and fertilizers that may run off into the water from and cause contamination. Many of these policies and laws can have greater financial cost to the resorts therefore it is something that they need to be very conscious of. This is important legislation because unclean water can cause many different health problems which includes Gastrointestinal, Reproductive, and Neurological issues. There are inspections to ensure that these guidelines are met and when they aren’t violators can face either civil or criminal penalties especially if they are aware of the danger, they are causing the general public. This act was amended in 2018 to improve overall water infrastructure (EPA, 2020).

Clean Air Act is another federal law, but the difference is that it regulates air emissions. It limits the amount of emissions and makes sure overall Air quality is maintained. It contains guidelines for cars, airplanes and even noise pollution. Resorts can add more noise to the environment, so it is something to consider on how they impact the area they are in. Permits and violations are treated in a similar manner to the clean water act. This effects resorts because they need to monitor how they may be polluting the air and how to lower it in order to not get fined (EPA, 2020).

One important government mandate for the environment is the Reorganization Plan No. 3 of 1970. This plan was sent to congress by President Nixon and was the beginning of the Environmental Protection Agency which created to establish and enforce federal environmental protection laws (EPA, 2020).

There are also certain requirements hotels must meet before beginning construction to make sure they are not having a negative impact on the environment. Hotels and the tourists they attract can destroy the local environment and habitat of native animals. These requirements are established out by the National Environmental Policy Act and include detail statements on the following:

1. The impact your action will have on the environment
2. Negative impacts that can’t be avoided
3. Alternatives to your proposal
4. The relationship short-term uses and long-term productivity
5. Are the any resources that would irreversible and irretrievable (EPA, 2020)

Recently more than twenty states sued the Trump administration for trying to decrease environmental regulations on infrastructure projects which included permits (Reuters,2020).

Legal Issues

Robertson v. Methow Valley Citizens Council, 490 U.S. 332- 1989

In this case a citizen’s council came together and claimed that a new proposed ski resort didn’t meet NEPA requirements before getting a permit. The district ruled in favor of Robertson while the appeal court reversed that decision. Ultimately the supreme court ruled that decision made by the original district court was correct. NEPA requirements did not state that the petitioner needed to include a worst-case analysis. They just need to make sure they detail how they are going to prevent or reduce negative environmental impacts. This shows that resorts will be held accountable to just the requirements stated and that they need to make sure to have accurate documentation.

Sierra Club v. Morton, 1972

The Defendant wanted to develop a piece of Mineral King Valley inside Sequoia National Forest into a Disney ski resort. The plaintiff sued stating that the resort would violate federal laws for the preservation of national forests. Although plaintiff originally received an injunction it was later appealed since the plaintiff lacked standing. The Sierra Club then amended their claim using the National Environmental Policy act to show that Disney would need to submit a report on how the presence of the resort would impact the surrounding area. They couldn’t show that the construction of the resort would affect them. This shows how important it is to have proof that there will be adverse effects in order for an environmental case to be successful. Although Sierra Club didn’t win the lawsuit, this ended in a positive because Disney backed out of the project after they saw the impact the resort would have. Awareness is also a good outcome for some advocacy group, just getting company’s and resorts to see negative environmental effects is a positive. This case helped set the prescient on how environmental cases would be handled.

National Cotton Council v. EPA 2009

This case had to do with the regulation of pesticides in bodies of water. For a long-time EPA allowed for pesticides to be put into the water without a permit and had the FIFRA monitored the use. The environmental interest group’s petitioned to have this corrected since this fell into the Clean Water Act while the pesticide industry wanted more leniency. The court ruled that the EPA’s Final Rule was not a reasonable interpretation of the Clean Water Act and made NPDES permits a requirement for pesticide disposal. This shows that no one is above the standards set by the Clean Water Act.

Massachusetts v. EPA, 549 U.S. 497, 2007

Similar to National Cotton Council v. EPA, groups such as environmental organization and state governments, brought an action against the EPA for not regulating the carbon dioxide emission for cars and trucks when it has such a negative effect on the environment. They felt it was the EPA’s duty to protect the environment from their effects. The EPA argued that they did not have the right to regulate this under the clean air act. The Supreme Court ruled that the EPA needed to prove that these gases do not affect the environment, or they needed to state the reasons they were not able to limit the pollution. This case showed that the government is responsible in helping create a better environment and that we must try to limit carbon dioxide emission which affects all industries since they all use some sort of transportation even if it’s just for delivery of supplies.

Foreign Laws

As seen by the different international agreements, many countries around the world also have a vested interest in the environment since it creates an impact on everyone and can affect their way of life. Countries like Kenya, Rwanda, Morocco, France, and Taiwan have bans on single use plastic. Penalties include things like being jailed for up to 4 years and being fined up to $40,000. Currently 127 countries around the world either have or are working toward plastic bans. Other cities in the world have taken it as far as to ban cars even if it’s just for one day a week since they have had such a large impact on pollution. Some countries even passed laws giving people access to environmental information from the government and allow them to challenge government decisions they feel violate environmental rights. The European Union has a ban on toxic pesticides while the US bans certain pesticides when they see a clear link between the use of that pesticides and health (Day Translations, 2019).

Recommendations

“In the United States alone, 43 million tourists consider themselves to be eco tourists (Alexander, 2002).” That means that 43 million people that bring in revenue are trying to travel in a way that doesn’t cause too much damage to the planet. Since this is such as large growing trend many companies have started to develop environmental sustainability strategies. That means that hospitality managers must try to be as eco-friendly and conscious as possible and be aware of the impact they are having on the environment since it is a growing global concern. There are companies that are finding ways to involve guests as well in their initiatives to do better by helping resorts waste less energy and water. That way guests feel like they are also making a difference. They must implement policies that help the environment or at least limit the damage. They must also be aware of any permits they require to do business or dispose of waste in order not to get fined or sued.

Not implementing environmental sustainability strategies can have a negative impact on a company. A lot of people know especially newer generations are very conscious about environmental issues so companies not showing to be environmentally conscious they could very well lose business. “There is now a clear and direct line from a company’s ESG performance to cost of capital, profitability, and share-price volatility (Norton, 2020).” This shows that companies with better ESG risk profiles are doing better than companies with low ones. ESG profiles consist of a company’s environmental, social, and governance factors. This shows that the general public cares if a company is thinking of factors other than just its own profit margins. Negative press is something companies want to avoid because at the end of the day reputation can have a huge impact on their bottom-line. It is important that we are all aware of the impact our actions can have and how we can help.

Introduction

When hosting events such as food and wine festivals, it is very important for organizers to consider many factors. First, they must consider a venue and what all will be necessary to make the venue work for the event’s needs. Next, the organizer must find vendors for the festival. This will typically include vendors from various wineries, and even local breweries, along with some food trucks or other restaurants. An added bonus for these festivals is the addition of entertainment and vendors with non-consumables. When adding all of these variables together, event organizers are faced with large-scale events that can be quite enjoyable for attendees. The problem for organizers, however, is that these festivals can also lead to legal action in the case of anything going wrong. This paper aims to uncover some of the liability issues that may arise during the production of food and wine festivals.

An Overview of Food Liability

There are a number of aspects by which a liability claim could be brought against restaurants and food vendors. The majority of the time when a claim is being brought against a restaurant or another aspect of the food production chain, it is the result of a foodborne illness. Additionally, claims may arise if a consumer experiences harm as a result of consuming an allergen. When it comes to food liability cases, negligence claims are the most common type of claim. Under these circumstances, a defendant may be liable for a defendant’s medical expenses, permanent injury, or even loss of enjoyment of life (Thomas, 2020).

Food Sales

When it comes to food liability, the seller of the food is liable for any damages to the consumer if the food makes the consumer ill. Within the chain of production for the majority of restaurant food products, there are many steps by which contamination can occur. The chain of production includes growers, packagers, transport, distributors, retailers, and finally the consumers. If a consumer comes down with a food-borne illness as the result of consuming a food, it is the responsibility of any step in that chain of production to prove that they received damaged or contaminated food. At that point, the point in the chain by which the food was damaged would be considered liable (Thomas, 2020).

Allergens and Food Damages

Another point of vulnerability when serving or selling food to consumers is the possibility of food allergens. The most common food allergens include eggs, milk, soy, fish, shellfish, groundnuts, and tree nuts. If a food contains any of these items, it must be listed on the food packaging. When there is no packaging involved, it can be very important for sellers to make consumers aware that a food may contain a specific allergen. If a seller isn’t aware of a consumer’s food allergy, then the seller may not be held liable for any reaction or damages that the consumer may face as a result of the food consumption. For the sake of being safe, however, servers should always ask guests about any food allergies that they have. When it comes to a food festival, it is often the safest bet for a seller to avoid selling foods with common allergens, unless they are able to provide all guests with information regarding the allergens in the dish. It should be noted that the same principles apply when it comes to a consumer’s food restrictions. If a guest is prohibited from eating a specific food, albeit for religious, medical, or other reasons, then a seller must ensure that the guest is safe from these foods if they have knowledge of the restrictions (Thomas, 2020).

Raw/Undercooked Foods

One highly common cause of foodborne illnesses is the consumption of raw or undercooked foods. This type of food consumption is especially dangerous for those with preexisting medical conditions. If a restaurant serves any foods raw or undercooked, it is the standard of the restaurant industry to provide all guests with warnings regarding the dangers of consuming foods that have not been cooked to full temperature. Failure for a restaurant to do so would constitute negligence and would make the restaurant liable to a consumer who falls ill as a result of that food consumption (Thomas, 2020).

When considering foodborne illnesses, it is important to note some of the most common illnesses: staphylococcus, E. coli, salmonella, and Hepatitis A. These illnesses are either caused by a virus, bacteria, or other parasites that can be found in food products. The microorganisms are introduced to food products when they are not handled or prepared properly and can cause many symptoms from nausea, vomiting, diarrhea, and fever to various organ problems and can even lead to death (Canwest News Service, 2010). In fact, the Center for Disease Control (CDC) estimates that approximately 76 million cases of foodborne illness occur each year, with these cases leading to around 325,000 hospitalizations and approximately 5,000 deaths (Holt, 2008).

A couple of notorious instances of foodborne illnesses were incidents of an E. coli outbreak and a Hepatitis A. E. coli is one of the leading causes of foodborne illness. Although it is naturally found in the intestines of farm animals, it is introduced to humans when they consume raw or undercooked foods and can make them very ill. In 2006, spinach from a food producer called Natural Selection Foods, LLC led to a large outbreak of E. coli in Wisconsin and Oregon. When investigating the cause of the illness, it was found that the spinach was contaminated with cow feces. A similar outbreak of Hepatitis A occurred in Pennsylvania in 2003, when contaminated green onions were served at multiple Chi-Chi’s restaurant locations. Cases of foodborne illness are currently decided upon based on product liability laws, which state that a plaintiff must prove that a food product that they consumed was contaminated and that the harm suffered by the plaintiff was directly caused by the consumption of the product (Holt, 2008).

An Overview of Liquor Liability

Any seller of alcohol must always be aware of all laws and regulations regarding the sale of alcohol. Additionally, they should be knowledgeable of the many circumstances under which they could be held liable should the sale of alcohol lead to danger or harm to another person. When a food and wine festival is underway, there are multiple sellers of alcohol who must be sure to do so responsibly, as failure to do so could lead to a negligence claim (Thomas, 2020).

Dram Shop Laws

Alcohol laws differ from state to state and country to country. In the United States, however, the majority of states have adopted dram shop laws. Dram shop laws create liability for sellers of alcohol that go further than simply negligence for matters of public policy. These laws are created to protect members of the general public from those who drink too much and may cause harm or injury to third parties as a result of their alcohol consumption. Therefore, dram shop laws create a link between alcohol sellers and the third parties who have experienced damages. In most states, there are three categories by which dram shop laws create liability issues for alcohol sellers: minors/those under 21 years of age, those who are already intoxicated or under the influence, and known alcoholics. If any seller of alcohol sells to someone that falls under these three categories, and that person should go on to cause harm to a third party, then the alcohol seller will be held strictly liable to anyone injured. If the person who consumed alcohol is a minor or underage, then the alcohol provider would additionally be liable to the underage person. It should be noted that this is one of the only scenarios in which the drinker is protected from the seller (Thomas, 2020).

Social Host Liability

An additional factor related to potential liability issues with the sale or service of alcohol is social host liability. Under social host liability, any adult who serves or provides alcohol to minors or to other persons who are clearly intoxicated can be held liable if the drinker is killed or injured or kills or injures a third party. In states where this is the law, this liability issue should be of particular interest to all event organizers who plan events where alcohol is served. Even if the organizer has not served the alcohol themselves, they may still be liable if it can be proven that they are the host of the event (Thomas, 2020).

An Overview of Event Liability

When planning events, there are many legal laws and regulations that must be considered. For example, there are various permits that must be procured prior to the event based upon some event specifics. A special event is defined by Mckellar (2019) as “any licensed transitory public gathering that takes place at a given location for a specific purpose that is self-limited in connection with a fair, carnival, circus, public exhibition, celebration, tasting event, or trade show. Any event cannot exceed 14 days’ time.” Under this definition, a food and wine festival would certainly be considered a special event.

Rules and regulations governing special events vary from state to state, and around the world as well. In general, however, the necessary permissions and regulations are similar from one place to another, and information regarding requirements for hosting events in a specific location can generally be found on that location’s official website. In Nevada, for example, some of the permits necessary to hold a festival include a Temporary Membrane/Building Structure/Tent-Outdoor-Fire Department Permit if a tent larger than 400 square feet is to be erected on the location premises. Additional permits would be necessary for added entertainment such as fireworks or animals. Special event permits are a requirement almost everywhere in order to hold a large festival. In most locations, these permits can be found on a location’s official website as well and should be turned in well in advance of the event.

When food and alcohol is to be served at a special event, additional permits become necessary. First, the organizer of the event is required to obtain an event coordinator permit, and the event coordinator is required to turn in and confirm all other permits in advance of the date of the event. Other permits necessary include temporary food establishment permits, special event liquor licenses, and a health permit for the special event. It should be noted that most food trucks will already be in possession of temporary food establishment permits and should not be permitted to participate as a vendor at an event without furnishing proof of their possession of the necessary permits. When hosting a food and wine festival, therefore, all of the above permits will be required in order to ensure event compliance with local regulations (Mckellar, 2019).

Thaddeus Segars v. Hilton Head Wine and Food, Inc.

In 2006, Sea Pines Resort hosted the 31^st annual Hilton Head Wine & Food Festival. Thaddeus (Tad) and Kellie Segars attended the festival, and during the course of the festival., Tad was brutally assaulted by an intoxicated attendee. The attack left tad with a broken jaw and detached retina. As a result of his injuries, Tad suffered complications with working and overall quality of life. Tad’s attacker was heavily intoxicated, leading Tad to sue the attacker, festival, venue, and security company for the venue. If each of the aforementioned parties had met their duties of care, the attacker would not have been permitted to drink to the point of such intoxication that he caused physical harm to others. This kind of behavior is exactly the kind of behavior that dram shop laws are implemented in most states to protect third parties against. While South Carolina does not have dram shop laws, however, it was still within the realm of the duty of care of festival staff, venue staff, and the security company to ensure the safety of festival attendees. Their negligence in allowing Tad’s attacker to be continuously served alcohol beyond the point of intoxication is a failure to meet this standard of care. The interesting thing to note, however, is that the lawsuit was not filed against any specific winery that was serving or selling wine at the festival. Instead, the lawsuit was filed against the entire festival (Kokal, 2019).

Analysis and Management Suggestions

It is important to consider food, alcohol, and event liability issues separately in order to truly understand the plethora of issues that could arise from the ill-planning of a food and wine festival. Not only are festival organizers faced with potential food liability issues but adding on alcohol and additional special event rules and regulations present added complications. To further complicate things, festivals are typically quite large-scale which further adds to the complexity of the event and the many legal issues that must be considered.

As an event manager, there are many factors that must be considered in order to protect myself and others from liability issues that may arise as the result of the production of a food and wine festival of any scale. One of the largest takeaways, in my opinion, is the need for a comprehensive liability insurance policy on every event. Not only should I have liability insurance as an organizer, but I should also require proof of liability coverage by any and all vendors that I may hire to assist in the production of the event. With the many things that could go wrong, it is best to always be safe when planning events and ensure that you will be protected against any personal or business liability should complications arise.

Even with liability insurance, however, it is best to do all that you can as an event organizer to avoid any legal issues from the beginning. To do so, managers must choose vendors and enter into all contracts with utmost caution. Vendors should not simply be chosen based upon their cost or a particular amenity that they have to offer. It is an event managers responsibility to conduct research on all vendors prior to making vendor choices. Only once the event manager is equipped with all necessary information about vendors should they consider entering into a contract with them. All contracts must be carefully analyzed, adapted, and suited for the specific event at hand.

In addition to selecting reputable vendors for any event, event managers must also ensure that all persons working at the event are properly trained in any areas in which they will be working. If they will be working with food sales, then they should be trained in proper food preparation and service in order to ensure that they follow all necessary precautions to avoid any food liability. If a worker will be handling alcohol sales, then they must be fully trained on all rules and regulations regarding the sales of alcohol. This is especially important, as alcohol laws vary considerably from state to state. Therefore, staff serving or selling alcohol must be aware of alcohol laws for the particular location in which the event is taking place, and being informed about surrounding areas is also a good idea as well.

Within the hospitality industry, there are various standards of the industry that come with duties of care that all businesses owe to their guests. Hotels have a duty of care to ensure that they provide guests with clean and safe lodging during the duration of their stay. Event venues have a duty of care to ensure the safety of events from violent or other terroristic acts. Food retailers have a duty of care to sell food that is fresh and has not been contaminated. And alcohol sellers have a duty of care to protect the general public by only selling alcohol responsibly. Organizers of a food and wine festival must consider all standards of the industry and ensure that they are showing all patrons the duties of care that they are owed.

References

Holt, A. (2008). Alternative liability theory: Solving the mystery of who dunnit in food-borne illness cases. Pittsburgh Journal of Environmental and Public Health Law. (March 11, 2010 Thursday).

Food-borne illness: protecting your family against food poisoning. Canwest News Service. https://advance-lexis-com.ezproxy.fiu.edu/api/document?collection=news&id=urn:contentItem:7Y0F-2MW1-2SFB-50VR-00000-00&context=1516831.

Kokal, K. (2019). 2 lawsuits filed after punches thrown at Sea Pines festival. Here’s where they stand. The Island Packet. Retrieved from https://www.islandpacket.com/news/local/crime/article229900489.html

Mckellar, M. ESQ. (December, 2019). ARTICLE: VEGAS LOVES FESTIVALS. Nevada Lawyer, 27, 24. https://advance-lexis-com.ezproxy.fiu.edu/api/document?collection=analytical-materials&id=urn:contentItem:5XPT-SM41-DXHD-G000-00000-00&context=1516831.

Thomas, J. (2020). Food and alcohol liability. Personal Collection of J. Thomas. Florida International University, Miami, FL.

Abstract

The purpose of this text is to gain a true understanding for Dram Shop Law liabilities in a general aspect, but also more in depth when it comes to the specifications regarding the State of Florida. The history and breakdown of Dram Shop Law will be thoroughly explained along with specific examples of cases that have occurred within the State of Florida.

Background and explanation of Dram Shop Law in a general aspect

Dram Shop Law otherwise known as Dram Shop Liability Statute is currently applied in 43 states across America. The eight remaining states who do not follow these laws are the following- Delaware, Louisiana, Maryland, Nebraska, South Dakota, Virginia, Nevada, and Kansas. The name Dram Shop Law was created in England during the 18th century when alcohol such as gin was sold in units measured in “drams” in bars and taverns. Dram Shop Liability is a civil liability that can be put on a person or establishment that sells or serves liquor if injury occurs. Each state as an individual implements their own Dram Shop Laws based on how liable they want to hold the person of action accountable for. The same scenario applies if a business or persons willingly provides an intoxicated person, a person with a drinking problem, or a minor alcohol where the provider is held liable if an injury occurs.

As mentioned, each state varies on their own version of Dram Shop Laws. Some states have a strict time limit that a claim can be made within, such as Florida allowing only four years from the incident, or in other states only 60 days. Social Host liability also ranges where the host of a private party or event would be held liable for serving a minor or someone who ends up in an accident due to their intoxication (Drews, 2019).

Dram Shop Law in reference to the state of Florida

Dram Shop Law varies widely with each state across the United States having their own specifications. In 1962, the Florida Supreme Court acted as the third jurisdiction to take the original common law which would allow some negligence claims to be made against vendors of alcohol that the sale could be the cause of an injury (Drews, 2019). Within two years after the twenty-first amendment was made, The Florida Legislature repealing prohibition was ratified, which is now section 562.11, making it an illegal crime to sell alcohol to a minor. (Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978, 1984 Fla. LEXIS 2728). The state of Florida Dram ShopLaw falls under Statutes Section 768.125 which enables a person who was injured in a car accident that was caused by an impaired driver to sue a bar or any other establishment that directly sold them or provided them with alcohol (Weber & Prado, 2019). Florida Statutes section 768.125 Liability for injury or damage resulting from intoxication directly states,

“A person who sells or furnishes alcoholic beverages to a person or lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the  intoxication of such person, except that a person willingly and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.” (The Florida Statues, 2020).

Therefore, in layman’s (“lay”) terms it is only allowed that a person can sue a bar or establishment if alcohol was served to a habitually addicted adult or a minor under the legal drinking age of 21 years old. Hosts of social gatherings cannot be held responsible for damages caused by alcohol that was served within a private party or event, even if the guests are habitually addicted individuals, but, the host can be held liable for serving alcohol to a minor.

Although, they may still face charges or penalties such as getting their license revoked for a specified period of time. In order to make a Dram Shop claim in Florida the injured person must make the claim within the required four years from the date of the incident, if and when the statute of limitations runs out during this time period, the victim of the incident will be barred from suing the bar. In most scenarios when it comes to Dram Shop cases the claim against the bar or establishment falls under negligence, therefore, it must be proven. There are four required elements that the victim must be able to prove:

1. Duty of care
2. Breach of Duty
3. Causation
4. Damages as a result of injury with the addition of evidence of all.

Complications often arise when it comes to Dram Shop cases, especially when it comes to providing evidence. It can often be a challenge to prove that the person or persons at fault are a habitual drunk, to go even further; to prove that those who served the alcohol to this person was aware that they were a habitual drunk is even more of a task. There are a handful of reasons why one might seek compensation while filing a Dram Shop claim, such as, for medical bill coverage for any or all of their injuries including their hospitalization fees, medication and rehabilitation charges. As well as, any wages they might have lost due to not being able to work, replacement costs for damaged or destroyed property, and pain or suffering they might have faced during their recovery (The 2020 Florida Statutes 2020

History of Dram Shop Law and case examples

Despite the Laws in place in Florida when it comes to Dram Shop, there have been countless cases and suits about the matter. In Migliore v. Crown Liquors of Broward, Inc. 448 So. 2d 978 liquor was sold to a minor which is someone who is stated to be under the age of 21 in this region. It is also said that serving or selling alcoholic beverages to a minor is an obvious foreseeable risk of the minor’s intoxication and injury to themself or a third person also seen as negligence, therefore, they were to be considered in the class of persons to be protected by the legislation. In this case, the court ultimately determined that the respondent liquor store was indeed liable for the petitioner that was injured as a third party, due to the fact that they were injured or killed by an intoxicated minor who was illegally sold alcohol.

On December 2, 1978, Frank Milgliore, was riding passenger side seat in an automobile that was struck by another automobile that was being operated by Bruce Gahring, a seventeen year old boy. Milgliore filed the suit stating that Crown Liquors of Broward County sold alcohol to the minor Bruce Gahring failing to ask for identification during the purchase of large amounts of alcohol. Therefore, this was further a concurring and contributing factor playing a critical role in the leading up to the accident and the injuries that Milgliore later faced that evening on the highway. Crown Liquors fired back stating that with a summary judgement on the grounds that Milgliore had no cause of action against them for their sale of alcohol to gahring , claiming that the record contained no evidence showing that the sale constituted a proximate cause of the accident that evening. This led the trial court to grant this motion and entered summary judgement in favor of Crown Liquors.

Milgliore appealed to the Fourth District who stated that the summary judgement and agreed with Crown Liquors that Section 562.11 in fact does not extend liability to the injured third parties. In reference to a previous case that occurred Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967) contrary to the Fourth District’s holdings, section 768.125 creates a cause of action for the third persons against dispensers of those intoxicated whom are minors, therefore, it is a limitation on the liability of vendors of alcoholic beverages. Section 768.125, Florida Statutes 1981 stating:

“A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for [*981] injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.” Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978, 1984 Fla. LEXIS 2728

Based on this statute and the references to the Prevatt v. McClennan case, the Fourth District must adopt the Second District’s holdings and remand further proceedings that are consistent with this decision. In an unassociated case that contained different circumstances, Mary Evelyn Ellis, a mother, filed a suit claiming that her son, Gilbert Ellis, was an alleged habitual drunkard who consumed multiple drinks at a local bar in Tampa, Florida. After leaving the property following the consumption of a few drinks, he was involved in an automobile accident where he overturned and crashed his car leading to extensive injuries including permanent brain damage. The trial court granted the respondents’ motion but did not provide a specific cause of action since these circumstances were alleged and not proven at the time. A claim of ordinary negligence under chapter 768.125 did not require the establishment of the elements of a criminal offense under chapter 562.50.

The outcome of this case was finalized with the court’s decision to quash the lower appellate court’s decision and remanded for further proceedings. The case concluded that a person who knowingly served a person habitual drunkard alcohol may become liable for injury caused by or resulting from their intoxication. The legislature on the case used the word “knowingly”, in the statute, a claim of ordinary negligence did not require the business of the elements of a criminal offense under chapter 562.50 since the establishment had no prior written notice of Gilbert’s alleged addiction. This ties into previously mentioned difficulties that are often run into in court when it comes to Dram Shop Lawsuits, until it is proven in court that negligence did knowingly occur, suits will often be dismissed. Otherwise, there is no proof that the persons who served the alcohol were aware of the alleged addiction that the guest had.

Management Suggestions

As a future manager in the Hospitality Industry, it is of the utmost importance that Dram Shop Law be well known especially in the state of Florida. Any establishment that owns or operates a business that involves the sale or providing of alcohol should be extremely careful to be as preventative as possible when it comes to the sales to their guests and the consumption of them. From a management point of view, from the now knowledge that has been obtained while writing and doing research for this paper, it has become very evident that little mistakes or small instances of negligence can have very serious consequences. Training staff and managers is to be taken seriously from the onboarding processes of new staff. If staff was to be unaware of the certain laws that the state places when it comes to Dram Shop they will not only unknowingly break laws, but they will be unable to prevent any accidents or situations that can ultimately lead to harm of third parties, the business, and the person of intoxication.

Having standards set in stone in every business when it comes to protocols is very important. For example, those serving alcohol should be aware of how to identify a fake Identification card that a minor might walk in with and try to consume or purchase alcohol with. Regulations when it comes to how many drinks per hour a guest should consume should also be made aware in order to avoid accidents. In addition, note should be taken if someone becomes a known habitual drunk at the establishment, whether it be at a bar, a restaurant, or a liquor store of any sort.

Conclusion

In conclusion, Dram Shop Law is a very diverse law that varies state by state depending on their specifications. In the Hospitality Industry, there is a lot of sales and consumption of alcohol, therefore, in every state each establishment should make their employees aware of what to look out for and how to prevent running into any issues with Dram Shop Law or negligence. Major takeaways from this research are the associated Dram Shop Laws that directly correlate with the state of Florida, since that is the current state of residence. Including, the four required elements that the victim must be able to prove: 1. Duty of care 2. Breach of Duty 3. Causation 4. Damages as a result of injury with the addition of evidence of all. Along with the four year time limit that a claim must be filed within from the date of the incident.

References

Drews January 7, M. D. (2019, January 03). Liability or Lack Thereof Under Florida’s Dram Shop Statute. Retrieved December 02, 2020, from https://www.tysonmendes.com/liability-lack-thereof-floridas-dram-shop-statute/Ellis v. N.G.N. of Tampa, 586 So. 2d 1042, 1991 Fla. LEXIS 1625, 16 Fla. L. Weekly S 619

Florida Dram Shop Law. (2017, March 14). Retrieved December 04, 2020, from https://www.lorenzoandlorenzo.com/personal-injury-guide/florida-dram-shop-law/

Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978, 1984 Fla. LEXIS 2728

The 2020 Florida Statutes. (2020, December 04). Retrieved December 01, 2020, from http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute

Weber, P., & Prado, D. (2019, June 18). Dram Shop Laws. Retrieved December 01, 2020, from https://www.findlaw.com/dui/laws-resources/dram-shop-laws.html https://www.pwdlawfirm.com/personal-injury/does-florida-have-a-dram-shop-law-to-sue-a-bar-for-a-drunk-driving-crash/

A quick weekend trip, a family reunion, a well-deserved holiday, a dream vacation, are all reasons to plan a cruise. The advertisements are professional and polished and showcase the best aspects of cruising. The crew is depicted in uniform, smiling and attentive; the captain and first officers appear to be in full command of the floating city; the passengers, of all ages, are smiling, laughing, and engaged in one or more, of many activities offered onboard or offshore.

The ads appear welcoming and portend a great trip, that is until something goes awry. The brochures do not depict just how unfriendly and uncooperative the cruise lines can become, if your cruise experience is the one that is shattered because of a criminal assault. If you are the one, out of thousands, whose trip is ruined, what recourse do you have and what remedy should you expect?

In July 2010, in order to establish a uniform standard of regulations and rules, for the cruise industry, the Cruise Vessel Security and Safety Act (CVSSA) was enacted. This legislation was a direct result of the perception that cruise lines were underreporting serious crimes and or in the least, not properly documenting reports of crimes. “The law mandated that cruise ships are required to report serious crimes which include: suspicious deaths, homicides, assaults that cause bodily injury, and sexual assaults to the FBI.” (H.R. 3360: Cruise Vessel Security and Safety Act – gop.gov, 2020) In the event there is money theft, it must be in an amount of more than US $10,000 before a formal report is filed. For any other crimes that occur, the cruise line is allowed to resolve them internally, without any public reporting required. It goes without saying that there are many victims of cruise ship crime who will not see justice.

“Maritime law is what binds cruise ship operators and holds them liable for intentional criminal acts committed by employees, sexual assaults and other crimes.” (Bratslavsky, 2019) The CVSSA, of 2010, provided more relief for victims of cruise ship crimes. It somewhat loosened the vise grip cruise lines previously had, over admitting fault and paying compensation and/or damages. Still, a victim of assault (sexual or otherwise) should immediately notify the authorities on the ship. They, in turn, are required to report all such incidents as they are considered serious crimes.

Cruise ships are large and are able to accommodate thousands of guests at once, making it seem like an impossible task to police and keep secure all areas of a ship. Relative to a small city, however, which may be sprawled out, a ship is confined to a limited geographic environment. It consists of decks, cabins, and common areas. It has entertainment showrooms, kitchens, and dining areas, as well as, operations and machinery zones and crews’ quarters. The other thing, of which there is an abundance, is surveillance cameras: they are almost everywhere on a ship.

These surveillance cameras are recording all of the time and as such, can potentially, offer a video record of criminal acts. The footage, however, belongs to the cruise line and it can be difficult to obtain. Another noteworthy consideration is that there is no mandate in place that requires a live person to monitor the surveillance that is occurring 24/7. Crimes and video surveillance occur in real-time. However, real-time monitoring, conducted by ship’s personnel, often does not occur in real-time. Hence, the crime will always be something that is investigated after the fact, instead of having been prevented in the first place by surveillance monitors.

The U.S. House of Representatives introduced a bill, in November 2019, the Cruise Passenger Protection Act (CPPA). If enacted, “this legislation will strengthen the existing CVSSA, by requiring cruise lines to notify the FBI within four hours of an alleged serious crime.”(H.R. 5096: Cruise Passenger Protection Act -congress.gov) This law will mandate that cruise lines indicate if alleged crimes were committed against juveniles. It also would require that incidents are reported when they occur in port, before the ship leaves the port. If the ship leaves port before being notified, of an alleged incident that happened in a U.S. port, then the ship must report it to the U.S. Consulate in the very next port of call. Further, this legislation mandates that ships have video surveillance in all common areas. CPPA will “require improved medical standards and aims to hold the cruise lines responsible for deaths, sexual assaults and violent crimes at sea.” (CPPA, 2020)

“Crimes on cruise ships, committed against juveniles, account for one-third of all reported incidents, according to the FBI.” (Cruise Guide, 2019) There is a sense of security aboard a cruise ship and children also have an inherent tendency to trust adults. Combine that, with the excitement of cruising and the unusual freedoms afforded them on cruise ships, and the potential for criminality increases.

In the case of K.T. vs. Royal Caribbean Cruises LTD, K.T., the minor plaintiff, alleged she was raped by a group of adult male passengers, on the first night of the cruise. The men plied her with alcohol and eventually led her to a cabin where she was both assaulted and gang-raped. She filed suit alleging that Royal Caribbean was negligent for failure to warn passengers of the danger of sexual assault on a cruise ship, and for failing to act to prevent the assault. The district court dismissed the complaint about the failure to state a claim.

However, on appeal, “the Eleventh Circuit reversed and held that the complaint sufficiently alleged that because Royal Caribbean’s crewmembers did nothing to prevent the large group of men from plying plaintiff with enough alcohol to incapacitate her and did nothing to stop those men from leading her away to a private cabin, Royal Caribbean breached the duty of ordinary care it owed her. Furthermore, but for Royal Caribbean’s breach of its duties of care to the plaintiff, she would not have been brutalized and gang-raped.” (K.T. v Royal Caribbean, 2019)

So, what do you do if you are the victim of a serious crime on a cruise ship? There is no formal law enforcement onboard these ships, only security personnel, and conflict resolution is the usual operating standard when they are confronted with a problem. The limitations of these security officers are further exacerbated if the alleged incident involves a ship’s personnel where a definite conflict of interest is present. Furthermore, the ship’s security officers are the only ones who investigate a crime while the ship is at sea and until it docks in a port.

There are many regulations and restrictions in place and a strict statute of limitations, which may affect a victim pursuing a claim against a cruise line. “It is important to file a claim within the specified period of time or the right to do so will expire.” (Malkin, 2019) One must first file a claim that outlines the nature of the complaint, along with a party’s intent to file suit. The filing of the subsequent suit must occur within one year of the time of the alleged incident, and it must be brought to the proper venue. Notice of claims and lawsuits must be filed timely or the dismissal of the said claim is foregone.

The victim will need the services of a lawyer to help prove a case that the cruise line is liable. Were there previous warnings about a passenger or crew member that the ship ignored? Were there dangerous conditions that led to an assault? Was the assault triggered by excessive alcohol consumption or drug use? There is often excessive drinking on cruise ships but there is also an excessive serving of alcohol aboard cruise ships, too. There are no Dram Laws in place aboard cruise ships. If a passenger can prove that she was intentionally overserved alcohol or that the staff knew the passenger was underage and still served her more, that helps the case.

If a passenger is assaulted on a ship, there are measures that need to be taken immediately thereafter:

• Do not bathe or take a shower until after you have been examined by medical personnel. Keep your clothing/bedding in a paper bag until the FBI or Coast Guard arrive on the scene.
• Immediately report the assault to the ship’s security.
• Seek treatment of physical injuries by the ship’s infirmary and have a rape kit examination, if possible.

• Report the assault, via telephone, to the FBI and the U.S. Coast Guard immediately.
• Record the names of the perpetrator(s), ship’s security officer(s), witnesses.
• Record the contact information for anyone who may have heard or seen the assault (cabins next door, for instance).
• Take photos of any injuries sustained and of the scene of the assault, if possible. When arriving at the next port of call or your home port, the FBI and/or local lawenforcement should be there to meet the ship. You should then seek treatment at the nearest rape center.
• Seek legal counsel from lawyers who specialize in cruise ship law. It is not enough to hire local counsel because of the restricted time frames and venues for filing. (Leesfield, 2020)

The dream of a luxurious cruise or the excitement of a fun weekend jaunt on a cruise ship remains the highlight of many vacationers. There are those, too who have yet to set sail, but long to do just that. Thousands of passengers embark and disembark cruise ships and they return home with beautiful photos, suntans, souvenirs and fabulous memories. However, for some, becoming the victim, whilst on a cruise, is a nightmare from which many have difficulty in removing from their psyches.

Knowing exactly what precautions to take, prior to boarding, can reduce the chances of becoming such a victim. Cruisers need to understand what rights are afforded to those who purchase tickets. It is important to refrain from excessive alcohol consumption and of letting one’s guard down, so much so, that one is put more at risk for the potential of assault or other crime being perpetrated against you.

In addition to the contractual agreement on the ticket, the parties are subject to maritime law, which is different than the laws followed on land. Maritime law encompasses all activities, offenses and crimes that occur on water vessels. If you do become the victim of a crime, follow the guidelines listed above and be sure to retain good legal counsel upon your return home.

Lawmakers continue to make progress to help strengthen passengers’ rights aboard cruise ships and to rightfully increase cruise ships’ liability when it is proven they are at fault by failing to provide reasonable care. Passengers need to hold these lawmakers to account to ensure that they have all of the legal protections afforded to them to prevent criminals from getting away with the seemingly perfect cruise ship crimes.

References

Bratslavsky, Andrew. “MANDATORY ARBITRATION OF SEXUAL ASSAULTS IN MARITIME LAW.” St. Thomas Law Review, vol. 31, no. 2, Spring 2019, p. 198+. GaleAcademic OneFile Select, https://link.gale.com/apps/doc/A613923761/EAIM?u=miam11506&sid=EAIM&xid=6cb7c30c. Accessed 1 Dec. 2020.

Congress.gov.2019. H.R. 5096: Cruise Passenger Protection Act – Congress.Gov. [online] Available at < https://www.congress.gov/bill/116th-congress/house-bill/5096/all-info/> [Accessed 10 December 2020]

“Cruise Ship Sexual Assault Cases Reportedly on the Rise.” Cruise Guide, 1 Dec. 2019, p. NA. Gale Academic OneFile, https://link.gale.com/apps/doc/A618527055/AONE?u=miam11506&sid=AONE&xid=5fccc5ca. Accessed 1 Dec. 2020.

Davis, J. B. (2020, Jun). ROUGH SEAS. ABA Journal, 106, 34-39. Retrieved from http://ezproxy.fiu.edu/login?url=https://www-proquest-com.ezproxy.fiu.edu/magazines/rough-seas/docview/2425609820/se-2?accountid=1090110gop.gov. 2020. H.R. 3360: Cruise Vessel Security And Safety Act – Gop.Gov. [online] Available at: <https://www.gop.gov/bill/h-r-3360-cruise-vessel-security-and-safety-act/> [Accessed 10 December 2020].K.T. v. Royal Caribbean Cruises, Ltd., 2020 U.S. Dist. LEXIS 51354 (S.D. Fla. 2020)

Leesfield, Ira H., and Adam T. Rose. “Assault at Sea: Here’s an overview of what claims to pursue and what to seek in discovery when your client was sexually assaulted on a cruise ship.” Trial, vol. 56, no. 7, July 2020, p. 40+. Gale Academic OneFile Select, https://link.gale.com/apps/doc/A631438725/EAIM?u=miam11506&sid=EAIM&xid=0ab63 93f. Accessed 1 Dec. 2020.

Malkin, E. (2019, April 19). Report of Sexual Assault on Cruise Ship Shows Gaps in International Law. Retrieved December 01, 2020, from https://www.nytimes.com/2019/04/19/us/cruise-ship-crimes-laws.html

“Sexual Crimes on Cruise Ships: A Historical Perspective on Security Issues for Passengers andCrew,” Tourism and Society: A Socio-Economic Perspective (ed. A. Pappathanassis), Heidelberg: Springer Verlag, pp. 141-151. Transportation.gov. 2020. Cruise Line Incident Reports | US Department Of Transportation. [online] Available at: <https://www.transportation.gov/mission/safety/cruise-line-incident-reports> [Accessed 1 December 2020].