Food Allergies and the Changing Application of the ADA
By Tyra Hilliard Attorney, Tyra Hilliard, Esq. | December 2016
More than 15 million Americans, nine million of them adults, have food allergies. While handling special dietary requests is not a new issue for hotels, the practical and legal issues surrounding accommodating dietary restrictions are changing. According to Food Allergy Research & Education (FARE), food allergies are on the rise. Because nearly half of fatal food allergy reactions are caused by food consumed outside the home, it isn't a far stretch to imagine that a significant number each year may occur in hotels.
Eight foods are responsible for 90% of all allergic reactions in the U.S.: milk, eggs, peanuts, tree nuts, wheat, soy, fish, and shellfish. The same eight foods are responsible for 90% of food allergies in the United Kingdom as well, although the European Union named fourteen allergens to be identified in food labels in its EU 1169 packaged food labeling law.
There is a great risk of negligence liability regarding food allergies. Hotel kitchen, restaurant, and banquet staff are the ones whose knowledge and actions can best mitigate this risk. Unfortunately, food service workers are not always as well informed about food allergies as we expect them to be. Three research studies duplicated in New York, Brighton (England), and Wellington (New Zealand) published 2011-2014 found very little consistency in the training and knowledge of restaurant and cafe owners, managers, kitchen staff and servers about food allergies. In fact, a large percentage of those that participated in the study believed false statements about food allergies were true such as:
- Allergen removal from a finished meal would render it safe (e.g. taking the nuts off a finished salad). Nearly a quarter of respondents in each study believed this was true.
- Consuming a small amount of an allergen from a finished meal would be safe. Nearly a quarter of U.S. and England respondents believed this was true. Only 14% of New Zealand respondents believed it was true.
- Fryer heat will destroy allergens. Nearly a third of England and U.S. respondents believed this was true. Only 12% of New Zealand respondents believed it was true.
It is interesting to note that since 1996, New Zealand has allowed restaurants to develop a Food Safety Program (including information on food allergy risks and management) that is registered and audited. Although speculative, this could explain why the New Zealand respondents performed better on some of the questions that the U.S. or England respondents. This suggests that better employee training, for kitchen staff and servers as well as sales and catering employees, may reduce the risk of liability for food-related litigation.
One reason that more training doesn't take place may be the perception among hotel executives that the risk of liability for food allergies is slight. While the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 were anti-discrimination laws intended to require accommodation for persons with disabilities, they were construed quite narrowly by the courts. Resulting case law citing these laws was not favorable to persons with food allergies.
The Rehabilitation Act of 1973 applies to programs and organizations who receive federal funding and is still one of the primary governing laws in schools through the U.S. The Americans with Disabilities Act of 1990 (ADA) was passed as an effort to expand the anti-discrimination protection of persons with disabilities to those in the private sector, including public accommodations such as hotels.