Approximately 15 million Americans have food allergies, according to Food Allergy Research & Education, Inc., which further notes this potentially deadly condition affects 1 in 13 children under 18 (or two in every classroom). Approximately 90 percent of these allergies stem from milk, eggs, peanuts, tree nuts, fish, wheat, soy and shellfish. Every three minutes, someone is rushed to an emergency department due to a food allergy reaction.
Food manufacturers, processors and distributors (including grocers, restaurants and schools) may be liable for a patron or consumer’s allergic reaction to food in a variety of circumstances. It’s not expected that these providers will be able to protect consumers from all harm. In general, in order to prove these entities were negligent, the plaintiff will have to show the manufacturer/ business breached a duty of care that caused the customer damage. There is no recognized duty that requires exclusion of all allergens in food products or to shield all consumers from potential allergic reactions.
That said, manufacturers, restaurants and other distributors may have a duty to warn customers about allergens, per the Food Allergen Labeling and Consumer Protection Act of 2004. It’s the duty of a food allergic consumer (and/ or the parents) to avoid those allergens. However, providers need to list the common name of major food allergens in their listed ingredients (i.e., “whey” needs to be listed as “milk” or “lecithin” as “soy”). Alternatively, companies can indicate the product “contains” or “may contain” certain potentially allergic ingredients, which must be listed. Those companies that don’t label major allergens or do so inadequately can have their products subject to recall, and could be liable if someone suffers a severe reaction as a result of relying on that inadequate label or incorrect label. Continue reading
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