New allergen disclosure law poses legal concerns for restaurants
A new California law requiring most restaurant chains to disclose allergens on menus is likely to leave companies open to lawsuits over the coming year as establishments adjust, legal experts say.
As of July 1, the law requires establishments with 20 or more locations nationwide to clearly disclose the “big 9” major food allergens on menus in their California locations or face fines. Similar bills are pending in Michigan, New Jersey and Illinois.
About 10% of Americans have food allergies, according to the nonprofit Food Allergy Research & Education, including nearly 4 million Californians. About half of those with allergies have experienced a severe reaction.
The new law “puts the onus on the business to declare what allergens are in the dish,” said Alden Parker, co-chair of the hospitality practice at Fisher Phillips in Sacramento. Previously, when customers had allergic reactions, restaurants often found ways to avoid responsibility, he said. But now, if a customer falls ill after the restaurant fails to list an allergen, the restaurant risks an expensive jury verdict, Mr. Parker said.
Personal injury lawyers are likely to aggressively seek out such cases, especially in the coming months when some restaurants may still have compliance gaps, he added. “They’re going to test the boundaries of this law.”
One potential blind spot for restaurants is accessibility.
Restaurants that list allergens via a QR code must also provide written materials for customers who don’t have a mobile device. The California Restaurant Association says the law also applies to everything from kiosks to websites and mobile ordering platforms.
Mr. Parker noted that digital menu disclosures should be enabled for visually impaired guests. Last year, the top five plaintiffs in class action case filings nationwide were visually impaired individuals claiming that defendants’ websites were not accessible as required by the Americans with Disabilities Act.
Federal law has required packaged food makers to declare allergens since 2006, but a busy restaurant is a more dynamic environment than a food manufacturer, said Riley Lagesen, Portland, Oregon-based chair of the global restaurant industry group at Greenberg Traurig. A restaurant may get into trouble if the kitchen makes a last-minute substitution or changes suppliers for an ingredient.
“Mistakes will happen,” he said, adding that because “California is the most litigious state in the country by far,” lawsuits are likely. In an allergy case, as in a food contamination case, anyone in the supply chain from the farm to the restaurant could be held liable, Mr. Lagesen noted.
In the last few years, companies such as Foodini have marketed software that helps restaurants track ingredients. The software aims to reduce risk and answer customers’ questions about everything from gluten to allergens to ethical sourcing. Allergen laws will likely increase adoption of such software, experts said.
Zach Kuperman, Austin-based national restaurant practice leader at broker Hub International, who has a daughter with severe food allergies, said many kitchen and serving staff aren’t properly trained on how allergens get into food.
“We’ve taken enough hospital visits that we know” to double-check served food, he said.
Insurance claims for injuries stemming from allergen-related mistakes would typically be covered under commercial general liability policies, Mr. Kuperman said. A fine for violating the law would typically not be covered.
The big restaurant chains “are way ahead” in terms of compliance with the allergen law, said Jay Gates, managing director of the restaurant practice group at broker Arthur J. Gallagher & Co., which has a large McDonald’s franchisee program.
National chains have been required since 2018 to provide calorie and nutritional information. Many restaurants already seem accustomed to the need for disclosure, Mr. Lagesen said.
“We have clients who see this as an opportunity to reach out to customers and hopefully provide comfort to guests with allergies that they have menu items they can eat,” he said. “They see it as a marketing opportunity.”