Food Allergy Risk Management: More Customers, Less Liability

By Steven A. Kronenberg
Murphy, Pearson, Bradley & Feeney, San Francisco, CA, USA

Food allergies present risk management problems and businessopportunities for restaurants. Personal injury litigation may resultin million-dollar liability exposure and conviction in the courtof public opinion. Many businesses are unprepared or underpreparedto meet the needs of the growing number of foodallergicconsumers. Restaurants that implement comprehensivefood allergy risk management plans can help reduce liability andcapitalize on the emerging market of allergy-conscious consumers.

KEYWORDS food allergy, food safety, risk management, bestpractices, training, personal injury, litigation

WHY DOES MY RESTAURANT NEED A FOOD ALLERGY RISK MANAGEMENT PLAN?

Food allergies present a serious problem for restaurants. A substantial and growing number of consumers have life-threatening reactions to certain foods. However, few restaurants know how to manage this risk and profit from it. Your kitchen staff may not know proper procedures for preparing an allergen-free meal, and servers may mistakenly assure customers that meals are safe. These lapses can hurt or kill customers, increasing the risk of lawsuits and lowering goodwill.

Implementing a food allergy risk management plan provides a growth opportunity and lowers your liability. It reduces the chance that your staff will mistakenly serve meals that could seriously hurt customers. Allergic customers are also more likely to visit restaurants that take their concerns seriously.

What is a Food Allergy?

According to the National Institute of Allergy and Infectious Diseases (n.d.), a food allergy is an abnormal immune system reaction to a food, and symptoms vary from mild (itchy skin) to life threatening (anaphylactic shock). Eight foods cause about 90% of reported reactions: milk, eggs, fish, shellfish, wheat, tree nuts (like walnuts), peanuts, and soybeans (Food Allergy, 2010; Mayo Clinic Staff, 2009). The only way to prevent an allergic reaction is to avoid the food that causes it (Mayo Clinic Staff, 2009).

How May a Customer's Allergic Reaction Hurt My Restaurant?

Allergic reactions expose your restaurant to million-dollar liability from personalinjury lawsuits and lost goodwill. In one case, DeCoite v. Grape LeavesRestaurant, a 32-year old woman with a peanut allergy died after eatingundisclosed peanuts (DeCoite v. Grape Leaves Restaurant, Riverside CountySuperior Court Action no. RIC340932, 2003). The woman told the server shewas allergic to peanuts. The server repeatedly assured her the food wassafe. Unfortunately, the restaurant negligently failed to disclose that its lambchops were marinated in peanut butter. The woman's parents were awarded$954,447. Even if you have insurance for this type of mistake, your policyprobably will not replace lost goodwill (and income) from negative publicityof a consumer's allergic reaction.

Unfortunately, stories like DeCoite are not isolated incidents. Eachyear, 30,000 people visit the emergency room for allergic reactions, and150-200 people die from them (Food and Drug Administration [FDA], 2010).Even one of four people who diligently avoid allergens will still suffer anaccidental allergic reaction each year (Aalberse et al., 2006).

Restaurant foods cause most food allergy deaths and the most frequentand severe symptoms (Canadian Broadcasting Corporation [CBC], 2002).Equally troubling, each new exposure to an allergen may cause someoneto have a significantly worse reaction (Clark & Ewan, 2005; FDA, 2010;Dugdale & Henochowicz, 2010), so restaurants must minimize this risk, evenfor customers who only suffer mild allergic reactions.

Welcoming Food-Allergic Customers Is Good for Business

Fortunately, welcoming food-allergic customers is good for business. Foodallergicconsumers are a large and growing population. About 12 millionAmericans have food allergies (Kagan, 2003). Over the last few decades,food allergy prevalence has increased dramatically; reports of childrenwith nut allergies have tripled from 1997-2008 (Sicherer, Munoz-Furlong,Godbold, & Sampson, 2010). In one recent study, half of the parents of children with food allergies reported that the allergy affected family socialactivities (Bollinger, Dahlquist, Mudd, Sonntag, Dillinger, & McKenna, 2006).

Restaurants that welcome these consumers can (profitably) provide asafe place for them to dine out. One company that sells non-allergenicproducts, Enjoy Life Foods, was named to the "INC. 500" list of fastestgrowingprivately held businesses for 2007 and 2008, with sales increasing783% and 805%, respectively, over a 3-year period (Enjoy Life Foods,2007, 2008).

HOW CAN MY RESTAURANT CATER TO FOOD-ALLERGICCUSTOMERS?

Solution: Implement Food Allergy Risk Management Training

Your restaurant can train its employees to manage food allergy risks (somestates already require this). Massachusetts requires foodservice workers toundergo food allergy safety training (Official Ming Tsai website, 2009; Smith,2010). In New Jersey, standard food allergy posters teach staff to take customerrequests for allergen-free meals seriously, check ingredient labels,and avoid cross-contamination (Abbot, Byrd-Bredbenner, & Grasso, 2007).However, one study of New Jersey's law found that restaurant staff needadditional training to identify "hidden" allergens in ingredients and preventcross-contamination (Abbot et al., 2007) .

However, whether or not your state requires food allergy training, customersare requesting allergen-free meals, and staff are not managing thisrisk. Your servers are probably not giving guests an informed, easily understood,and consistent response. Kitchen staff are probably not using standardprocedures to minimize risks of serving contaminated meals. In a 2005 study,one-fifth of supposedly "peanut-free" restaurant meals were contaminatedwith peanuts, and for 11% of those dishes, restaurant staff negligently reassuredcustomers that their meal was peanut free (Abbot et al., 2007).

Noneof these facilities had a food allergy risk management plan (Abbot et al.,2007).The bottom line is that you cannot rely on untrained staff to tell customersthat meals are allergen free. Incredibly, some waiters do not knowthat pistachios are nuts (Diana [screen name], 2008). Many staff wronglybelieve that cooking food (which eliminates bacterial contamination) alsoprevents allergic contamination (Abbot et al., 2007). Others mistakenly thinkthat simply removing nuts from a salad makes it "safe" (Ryan & Sicherer,2007).

Why Not Just Put a Warning Label on My Menu?

Restaurants that simply put blanket allergen warning labels on their menuscreate serious problems for both the restaurant and consumers. Health120 S. A. Kronenberginspectors may conclude that your restaurant is trying to compensate forsloppy cleaning practices, as manufacturing inspectors have done (Dahl,2006). Even with a warning label, some customers will still request allergenfreemeals, and your staff may still (mistakenly) attempt to reassure themthat their meals are allergen free. Over-labeling also tells allergic customersand their loved ones that they should eat at your competitor'srestaurant.

Advantage: Food Allergy Risk Management Lowers Riskand Grows Your Business

Implementing a comprehensive food allergy risk management plan will help your restaurant reduce liability and capitalize on the emerging marketof allergy-conscious consumers. (For more information, please contact the author.)

REFERENCES

Aalberse, R. C., Barnes, K., Galli, S. J., Geha, R. S., Hefle, S. L., Holt, P. G., Van Nest,G. A. (March 13-14, 2006). Report of the NIH [National Institutes of Health]Expert Panel on Food Allergy Research. Retrieved July 26, 2010, from http://www.niaid.nih.gov/topics/foodallergy/research/pages/reportfoodallergy.aspx.
Abbot, J. M., Byrd-Bredbenner, C. & Grasso, D. (2007). "Know before youserve," developing a food allergy fact sheet. Cornell Hotel and RestaurantAdministration Quarterly, 48(3), 274-283. DOI: 10.1177/0010880407302779.
Bollinger, M. E., Dahlquist, L. M., Mudd, K., Sonntag, C., Dillinger, L., & McKenna,K. (2006). The impact of food allergy on the daily activities of children and theirfamilies. Annals of Allergy, Asthma & Immunology, 96(3), 415-421.
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