HospitalityLawyer is excited to welcome back speaker David Denney to the Tenth Annual 2012 Hospitality Law Conference. David Denney is the principal of the David Denney Law Offices and focuses on Food & Beverage Law. He represents clients on matters such as the formation, purchase and sale of business entities, private placements of securities, commercial leases, foodborne illness and allergy liability, employment matters and beverage alcohol licensing. In anticipation of his presentation on “Strategies for Preventing and Defending Food, Allergy and Alcohol Claims,” HospitalityLawyer has invited David Denney as a guest blogger. In his post below, David Denney discusses the consequences of a food allergy crisis and how to avoid one. Attend the Hospitality Law Conference to see David Denney’s presentation and learn about other pressing topics in the hotel and restaurant industry
When you started in the restaurant business, you may have assumed that the only “life or death” scenarios you would face would involve dealing with payroll, rent or food costs. I’ll bet no one told you that decisions you make could result in the death of a customer. If you haven’t yet faced such a scenario, you could soon.
In fact, if a diner has a severe allergic reaction in your restaurant and you get sued, legal costs, settlement or judgment payments and lost business due to bad publicity could be enough to cripple or ruin your restaurant.
Here we will look at a few examples of lawsuits based on restaurants’ failed responses to their guests’ allergy concerns, actions to minimize the risk of a crisis, suggestions on policies to reduce allergy liability, and what to do should such a crisis occur in your establishment.
Food Allergy Basics
Studies estimate that between ten and thirteen million Americans suffer from food allergies. In addition to the 30,000 people who receive lifesaving emergency room treatment each year, allergic reactions to food result in approximately 150-200 deaths.
The most common food allergies are seafood (both fish and shellfish), peanuts, tree nuts, dairy, soy, wheat and eggs. These cause 90% of all food allergic reactions, and though they seemingly include the fundamentals found in any restaurant pantry, many allergic individuals still either dine in our restaurants or they order takeout.
A study in the Journal of Allergy and Clinical Immunology published in Feb. 2006, reported that, overall, restaurant workers believe themselves to have a high knowledge of allergy-related issues, as well as a high estimation of their ability to deal with an allergy emergency. The survey targeted managers, servers and chefs across a broad range of restaurant types. Not surprisingly, however, their actual knowledge was revealed to be woefully inadequate. For example, 34% of those surveyed believed fryer heat would destroy allergens (it doesn’t), 29% thought removing an allergen from a finished meal (i.e. scraping off the nuts) would render the dish safe (it doesn’t), and 25% indicated that consuming a small amount of an allergen would be safe for a person with a food allergy (it wouldn’t – in fact, British Columbia’s FOODSAFE Secretariat has reported that as little as one five-thousandth of a teaspoon of allergens has been fatal).
Legal Ramifications
When a diner asks whether a certain food contains an allergen and you answer with specifics (e.g. “there are no nuts in the pesto”), the restaurant provides an express warranty which, if not honored (because there are nuts in the pesto), can expose the restaurant to liability for a breach of that warranty. In certain states, a breach of warranty that occurs “knowingly,” can result in treble damages under consumer protection statutes.
Similarly, anytime a diner indicates that she has an allergy and the restaurant elects to serve her, it assumes a legal duty to serve her food without allergens. A restaurant’s failure to meet that duty could be deemed negligence, which would leave it exposed to liability.
Moreover, the U.S. Food & Drug Administration (FDA) now requires manufacturers to clearly label foods to indicate whether they contain any ingredients derived from the major food allergens. While that rule does not directly affect restaurants, the FDA’s 2005 updates to the Model Food Code (which is intended to provide guidelines for state and local food safety regulations) recommend that each restaurant have a manager on duty who can (among other tasks) identify both the major food allergens and symptoms suffered during an allergic reaction, and discuss the restaurant’s control of cross-contamination (where allergens get into food from an unknown and unintended source).
The one-two punch, then, is this:
(1) In a state that has adopted the new FDA Food Code, a restaurant must maintain a vigil against cross- contamination, thereby requiring someone to read the labels on the manufactured foods it purchases to prevent allergens from coming into contact with other foods.
(2) When the kitchen staff reads the label (now containing allergen information), the restaurant will be presumed to have knowledge of the ingredients, including the allergens. If the restaurant then serves one of these ingredients to an allergic diner, it breaches its duty of care to that customer.
Also, as food allergies have become more prevalent they have garnered more attention from state politicians. Various bills regarding food allergies were introduced across the nation in 2007, including those which would require restaurants to:
- train at least one employee in food safety issues, including allergies;
- place an allergy warning on its menus or tables; and
- post allergy information in food preparation areas and train employees on food allergies.
How, then, can a restaurant protect itself from liability when dealing with allergic customers who might die within minutes if exposed to certain ingredients? First, learn from your colleagues’ mistakes.
The “Secret” Sauce
A diner with a tree nut allergy asked her server if the chicken pesto sandwich contained nuts, and the server erroneously assured her that it did not. Of course, the pesto sauce contained pine nuts, which sent the diner into anaphylactic shock, quickly resulting in a coma that lasted until she died a week later. Not surprisingly, her widower proceeded to file a wrongful death lawsuit against the restaurant seeking over $10 million dollars in damages.
Lesson No. 1: While the server’s incorrect answer may have been partially attributable to the fact that the ingredients for the restaurant’s “secret sauce” had been withheld from the servers, it is simply never prudent to allow anyone but a chef or manager to answer such life-or-death questions.
Lesson No. 2: Most of us know that even a “secret” pesto sauce is likely to contain pine nuts. Educate your entire staff on the fundamentals of your food.
Lesson No. 3: Even if you do not have a policy on who should answer allergy questions, make sure your staff knows that “I don’t know” is both a correct and acceptable response.
Peanuts
A Minnesota man with a peanut allergy dined at a Chinese restaurant. Based on experience, the man knew to inquire whether the restaurant’s egg rolls were prepared in peanut oil. The waitress assured him they were not. Ninety minutes after his first few bites, he was dead.
What the waitress did not know (or simply failed to mention) was that the egg rolls were prepared with peanut butter to seal the dough and enhance their flavor. As you might expect, the man’s widow sued the restaurant for negligence.
Lesson No. 4: Sometimes the servers do not have all the information. In this case, the diner received a technically correct answer. Unfortunately, the server in this instance did not have a complete answer that was specific to his condition, which resulted in a dead patron and the restaurant paying a $450,000 settlement.
MSG
A diner asked his server at a national restaurant chain whether the soup contained MSG, another common allergen. She assured him that it did not, offering instead that the chef made all the soups from scratch daily. After consuming the soup, he suffered MSG Symptom Complex, which caused his lungs to shut down and sent him into cardiac arrest, resulting in brain damage due to lack of oxygen.
Though he survived, he, too, sued the restaurant.
Lesson No. 5: Sometimes you just have to revisit Lessons 1-4.
Cross-Contamination
A diner informed his server at a (different) national chain that he was extremely allergic to fish. He had dined at that very restaurant six months earlier and suffered a severe allergic reaction, so he took special care to inform his server of his condition. Nevertheless, his food (which contained no fish) was prepared on a grill that had previously been used to prepare seafood. He was them promptly rushed to the emergency room for life-saving treatment. He, too, sued the restaurant.
Lesson No. 6: Cross-contamination deserves special attention. Even trace amounts of an allergen on a cooking surface, cutting board or utensil can be enough to kill.
The Afterthought
A diner with a severe coconut allergy was eating at a five-star New York institution. The diner was a trained chef, and he informed both the waitstaff and kitchen staff a total of five times about his allergy. The dinner was executed flawlessly, without incident. When the check arrived, however, it was accompanied by two chocolate truffles which, of course, contained coconut. Fifteen seconds after the first bite he was violently ill and spent the night in the emergency room – and not receiving the sweet ending the restaurant intended.
Lesson No. 7: Be vigilant and track every morsel of food served – including the pre-packaged ones.
The Restaurant Wins One
A customer with a severe peanut allergy and her friend ordered Chinese take-out. Without consulting the menu, the allergic customer ordered almond chicken, which she had ordered many times before from that restaurant. Though her friend placed the order, the allergic diner did not ask her to inform the restaurant of her allergy or inquire about ingredients.
Unfortunately, her almond chicken had become cross-contaminated with traces of peanut. After the first bite, the allergic diner felt the onset of an allergic reaction and ended up receiving lifesaving medical treatment at the emergency room. She survived and, of course, sued the restaurant.
After the trial court dismissed the case, the diner appealed. The appellate court upheld the trial court’s ruling, finding that because the diner failed to inform the restaurant of her allergy and thus did not obtain from the restaurant a promise that her meal would be free of allergens, the restaurant had no legal duty to provide her an allergy-free meal.
Lesson No. 8: Absent more stringent legislation, if you are not made aware of a diner’s allergy you are probably not under a duty to provide an allergen-free meal. Nevertheless, you should have policies in place for those instances when you are made aware of a diner’s specific needs. Do not wait until the allergic customer places an order to think about how to prevent a crisis.
Sound Policies
In an industry in which owners and operators are notorious for not giving any managerial control to waitstaff, the first four Examples show instead that some restaurateurs have given away all the control when it comes to allergy issues. Your servers are your first line of defense against liability, and if you fail to implement policies specific to allergens you could be one wrong answer away from closing your doors.
Get the Information
Some restaurants require their servers to ask each table whether there are allergy issues that should be addressed, while others place a statement on the menu akin to, “So we may serve you better, please inform your server of any dietary restrictions.” Furthermore, if there are “hidden” allergens in certain dishes (i.e. peanut butter in the chili), consider disclosing that for those specific menu items.
Many restaurants elect to post allergy information on their Web sites. CEC Entertainment, Inc., the parent company of Chuck E. Cheese’s Pizza, has a separate “Food Allergy Information” page its site. Rather than lose business due to parents’ concerns over allergens, CEC posts information specific to nuts, dairy gluten (wheat), and MSG – all allergens to which millions of children are allergic. The CEC Web site also provides an email address for additional allergy-related questions not addressed by its FAQ (frequently asked questions).
Brinker International, Inc., the parent company of Chili’s, posts menu suggestions on its website for diners with allergies to the major groups listed above. Each suggested menu, however, states that due to various circumstances in the preparation, handling and service of its food (all possible sources of cross-contamination), Chili’s “is unable to guarantee that any menu entrée . . . can be completely [allergen]-free.” While this disclaimer is probably not enough to prevent Brinker from being sued by a diner who has an allergic reaction, it does make great strides in attempting to meet its customers’ needs while informing them of the realities of cross-contamination and may be enough to win such a suit. If a diner elects to order one of the recommended entrees with knowledge of the possibility of cross- contamination, it will make it much harder for that diner to prevail in a lawsuit.
Designate a Manager
The reality of high turnover in both front- and back-of-the-house employees will likely make it impractical to keep all your employees trained on detailed ingredient information. Thus, the most comprehensive policy for managing these concerns will likely be to name one manager-level staff member per shift to handle all allergy-related questions. While the servers in the examples above either answered the diners’ questions incorrectly or failed to inform the kitchen of the diners’ concerns, a manager will be more likely to take ownership of the situation and ensure the diner’s needs are met. The designee does not need to be fully versed on each ingredient that goes into each dish, but such an employee can be more specifically trained on ingredients and will be more competent to discuss allergy concerns with the kitchen than a server.
Such a policy might include language such as this: “When a server learns of a diner’s allergy, he will immediately inform the designated manager, who then can answer specific questions about ingredients or provide a chef to do so. If there is ever uncertainty about whether a certain menu item contains an allergen, the manager can provide an alternate suggestion. The order should be written on a special ticket (perhaps even on a different color paper). The manager will then get the ticket to the kitchen staff, ensuring they are made aware of the allergy concern so appropriate ingredients are used and cross-contamination does not occur. Once the items are prepared, the manager will track the order as it is served to the guest. Finally, after the meal the manager should check on the diner to ensure that they are satisfied.”
This policy would likely have eliminated the tragedies from Examples 1-4. Anything less entrusts the guest’s health and the future of your business to a server’s imperfect knowledge. For this policy to work, however, you must train your staff to look to the designee for answers to all allergy concerns, without exception.
Train
In addition to requiring wait staff to address allergy questions to a designated manager, your entire staff should be trained on the signs of an allergic reaction. Some common symptoms include swelling, difficulty breathing, hives, cramps and vomiting, and loss of consciousness. Awareness of these symptoms may allow restaurant staff to notice a reaction early, which can result in quicker treatment for the diner. The allergy policy should be incorporated into your employee handbook materials and revisited on a semi-annual basis to ensure both old and new employees stay up to speed.
The Food Allergy and Anaphylaxis Network, in conjunction with the National Restaurant Association, has produced a training guide, including written materials and a video, to educate both front- and back-of- the-house staff on how to safely prepare and serve food to guests with allergies. The materials retail for about $100.
Prevent Cross-Contamination
The other major cause of allergic reactions in restaurant patrons is cross-contamination. Cross- contamination occurs when, though no allergens were used in the preparation of an order, trace amounts of an allergen get into the food from an unexpected source.
Though there are many ways cross-contamination can occur in a restaurant kitchen, the most likely culprits are fryers, grills and woks. Oil used to fry seafood is not safe for frying the chicken of a diner with a seafood allergy because proteins from the seafood will remain in the oil after cooking. As seen above, residue on a grill can contaminate otherwise nonallergenic food.
Furthermore, unclean hands, spatter, cutting boards and utensils can also be sources of cross- contamination. Nuts, for example, leave oils on both the cutting surface and knife, which must be removed with a cleaning agent.
Should you unintentionally send a contaminated plate to an allergic diner (i.e. the amuse bouche is served with a milk-based foam), it is not enough to simply remove the item and return that plate to the customer when the item is sent back. The customer must receive a new plate and new food that has not been in contact with the allergen. While this might result in you throwing that particular portion out, the potential danger is too high to do otherwise.
Solutions to cross-contamination issues include the use of designated areas in the kitchen for working with seafood or nuts, the exclusive use of color-coded cutting boards for allergenic foods and training your staff to watch for spillage.
What to do when a Diner has an Allergic Reaction
[Symptoms of an allergic reaction can manifest themselves anywhere from mere seconds to a few hours later. Simply put, it is likely that you will know whether a guest is having an allergic reaction. If a guest complains of the symptoms of a severe allergic reaction, call 9-1-1 immediately. Too many deaths occur where individuals with food allergies misread their symptoms, thinking all they need is a couple of puffs on an asthma inhaler to ease their discomfort. When a severe reaction is occurring, every second counts.
After the initial chaos associated with such an event dies down (but later that night, not later that week), call your attorney so the entire situation can be reviewed and employee statements may be taken while the event is fresh in everyone’s memory.
If, on the other hand, a diner refuses medical treatment, you should document that decision. Write down what happened and the names of any witnesses, whether employees or patrons.
Conclusion
The dietary restrictions on customers with food allergies can be stringent, but with some forethought a restaurant can implement sound policies to address their needs. When it comes to dealing with food allergies, the owner/operator should strive to remain in control: control of the servers, control of the information flowing from the table to the kitchen and control of the finished product. Furthermore, employees should be trained to pass all allergy-related questions to a designated manager, to avoid cross-contamination and how to spot and respond to a customer’s severe allergic reaction.
Learn from the mistakes others have made. Implementing these simple policies should provide you with peace of mind regarding your restaurant’s ability to both address the needs of allergic diners and avoid the crippling liability that could otherwise accompany a food allergen crisis.
*This article was first published in the June 2008 issue of Restaurant Startup and Growth Magazine.
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