Are Restaurants That Lack Gluten-Free Options Open to Lawsuits?

News, Rights

Women looking at menu in cafeFood allergies affect up to 15 million Americans. Of those, up to 3 million are estimated to suffer from celiac disease, a condition that requires individuals to follow a strict diet free of gluten. As the number of people suffering food allergies rises, restaurants are open to lawsuits from patrons experiencing allergic reactions. Likewise, schools are open to lawsuits from students who are unable to safely eat the school’s food.

People with Allergies Are Protected Under ADA

The Americans With Disabilities Act (ADA) covers people with severe food allergies, since they can substantially impair “major life activities” and are thus considered a disability. The ADA applies not only to public institutions like government facilities, public schools, and state universities, but to private schools and “public accommodations” as well. Restaurants, hotels, and retail stores are a few examples of “public accommodations.”

These definitions leave many places that serve food open to being sued. In December 2012, the Department of Justice came to an agreement with Lesley University of Massachusetts regarding food allergens. A student with celiac disease could not safely eat the school’s food but was not allowed the option to decline purchasing the mandatory food plan. The student complained to the federal government in 2009.

Colleges are particularly open to such suits because many students must eat on campus. But are restaurants vulnerable, too?

When Is a Restaurant Held Responsible?

A restaurant is not required by federal law to list all the ingredients in a dish on its menu. A customer should tell a member of staff about any allergies, though. If the customer discloses a food allergy, is reassured that the food can be made without the allergen, and then suffers an allergic reaction, they may have grounds to sue.

A restaurant can also be sued on grounds of negligence. If it assumes duty by listing ingredients and known allergens, but lists them incorrectly or incompletely, that can be considered negligence. They must take precautions to keep allergens away from foods at every step of preparation, too.

Should a diner experiencing a food allergy sue? Even if there are grounds, it may not be worth it. Unless the reaction has led to long-lasting health or financial difficulties, a simple letter to the restaurant or talk with the manager might be better. (If you’re in this situation, talk to a lawyer in your state for advice.) People with food allergies should assume that there is always a risk of contamination, despite what the restaurant staff says, and plan accordingly.

The Problem with “Gluten-Free”

The increase of allergic reactions and the threat of lawsuits have spurred many restaurants to simply give up and refuse to accommodate food allergies, or to make legal disclaimers protecting themselves. Domino’s Pizza, for example, offers a “Gluten Free Crust” but recommends that people with celiac disease do not order it.

One difficulty was the vague meaning of the term “gluten free,” which up until this month was not defined. The Food and Drug Administration (FDA) has now set guidelines for voluntary labeling that set items labeled “gluten free” at gluten levels of no more than 20 parts per million. Before this term was defined, a restaurant could offer a “gluten free” dish but remain unsure of what exactly was in it. A person with celiac disease might eat the dish but have a reaction anyway, giving them grounds to sue. It’s safer on the restaurant’s part to simply refuse to take responsibility and not guarantee that anything they serve is free of gluten or other allergens.

How Restaurants May Handle Allergies

State legislation may make a difference. Massachusetts led the way in 2010 by passing the Food Allergy Awareness Act. Under this act, restaurants in the state must learn about allergic reactions as well as how to recognize and treat them, and inform customers that they must disclose food allergies. Rhode Island passed a similar law that went into effect in 2013, and Maryland appears to be next.

For now, restaurants cannot be sued simply for refusing to offer gluten-free options. On campus at a university there’s no other choice of food, but patrons always have the options of eating at another restaurant or at home. Hopefully, with more education about food allergies and a consensus of the meaning of “gluten free,” the number of severe allergic reactions in restaurants may decrease.