LEGAL ISSUES WITH FOOD ALLERGIES

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.