An estimated 15 million Americans have food allergies, including 1 in every 13 children. Every three minutes, someone is rushed to the emergency room for an allergic reaction to a food allergy.
Nearly 90 percent of food-allergic reactions are caused by milk, eggs, peanuts, tree nuts, fish, wheat, soy, and shellfish. With the prevalence of food allergies, can you be held liable if someone has an allergic reaction to your food products?
We can't protect our customers from all harm. We can't protect them from themselves. Food producers and restaurants are generally not liable for injuries or allergic reactions unless they were acting negligently. To prove negligence, a customer would have to show that a business had a breached a duty and caused a customer damage.
Courts have not recognized a duty to exclude all allergens from food products and protect all customers from allergic reactions.
Duty to Warn
However, restaurants and food producers may have a duty to warn customers about allergens.
Food Allergen Labeling and Consumer Protection Act of 2004
Recognizing that a significant amount of the population suffered from food allergies, and the potential deadly affect of that condition, Congress passed the Food Allergen Labeling and Consumer Protection Act of 2004. The act requires that the label of a food that contains a "major food allergen" ingredient must clearly declare the presence of the allergen.
Food manufacturers must include the common name of major food allergens in the list of ingredients. For example, whey and lecithin must be listed as "whey (milk)" and "lecithin (soy)."
Alternately, the label may use the word "Contains" and a list of the major food allergens included, such as "Contains Wheat, Milk, Eggs"
Foods that mislabel or fail to label major allergens may be recalled by the FDA.
Some states, including Massachusetts, Michigan, Rhode Island, and Virginia, have enacted laws that impose a duty on restaurants to warn about possible food allergens in their foods. In Massachusetts, restaurant menus must state, "Before placing your order, please inform your server if a person in your party has a food allergy." Restaurants are also required to have at least one certified food protection manager who has gone through the state's allergen awareness training on staff.
So, while you may not necessarily be liable for a customer's allergic reaction depending on your state laws, take steps to warn customers of major food allergens. It's a courtesy to your customers, and news of a customer dying of an allergic reaction in your restaurant may be more socially damaging than any criminal or civil liability you may face. If you have been sued for negligence, consult with an experienced personally injury defense attorney.