The days of “PB&J” as a school lunch staple are gone in many areas. Policies limiting the presence of peanuts are just one result of a startling rise in food allergies. For many sufferers, food allergies go far beyond a tingly mouth or upset stomach. Food allergies can be deadly making accurate labeling and attention to detail throughout the food industry incredibly important. Food allergy litigation is a developing field and our San Francisco food allergy lawyer is prepared to advocate for people and families who have faced a serious allergic reaction because of inaccurate labeling, careless food preparation, or other negligent food handling and/or preparation practices.
Massive Cheerios Recall Due to Presence of Allergen
This week, perhaps the biggest name in cereal went from the shelves to the headlines as General Mills recalled 1.8 million boxes of regular and Honey Nut Cheerios. NBC Bay Area reports that the recalled cereal, which was produced in July at a Lodi, California facility, is labelled “gluten-free” but contains wheat. General Mills says wheat flour, which contains gluten, was inadvertently used instead of gluten-free oat flour. Consuming gluten can cause an allergic reaction or discomfort for people with celiac disease, wheat allergies, or other health issues. General Mills is pulling affected cereals from stores and warehouses. Customers who purchased the affected cereals and are unable to eat wheat can contact General Mills for a replacement or a refund.
Food Allergies on the Rise
An allergy is a hypersensitivity disorder where the immune system reacts to a substance normally considered harmless. Food allergies are more serious than milder (and more common) food intolerances. According to the Centers for Disease Control, food allergies among those aged 17 years and younger increased from 3.4% in 1997-1999 to 5.1% in 2009-2011. Notably, there was not a corresponding significant change in the prevalence of general respiratory allergies. A report from Massachusetts General Hospital notes that, while attention has focused on children, some 9 million adults (4% of the U.S. population) suffer from food allergies.
Early detection and intervention is critical since some food allergies can cause life-threatening anaphylaxis. The American Academy of Allergy, Asthma & Immunology states that 38.7% of children with food allergies have experienced a severe allergic reaction to a food with peanuts being the most common allergen followed by milk and shellfish.
Food Allergies and the Law: Liability for Allergen Exposure
In 2004, Congress passed the Food Allergen Labeling and Consumer Protection Act. The law requires food labels to disclose the presence of eight common allergens: milk, eggs, fish, shellfish, peanuts, tree nuts, wheat, and soy. The Act also calls for a study aimed at developing allergen rules for food service establishments.
- Labelled Foods
In general, liability for exposure to a food allergen can be divided into two categories based on whether the potential defendant is a food manufacturer or a food service establishment (e.g., restaurant, school, nursing home, etc.). Suits against food manufacturers are often based on a failure to warn claim. Civil Jury Instruction 1206 provides that to establish such a claim a plaintiff must show all of the following (quoting):
“1. That [name of defendant] [manufactured/distributed/sold] the [product];
- That a substantial number of people are allergic to an ingredient in the [product];
- That the danger of the ingredient is not generally known, or, if known, the ingredient is one that a consumer would not reasonably expect to find in the [product];
- That [name of defendant] knew or, by the use of scientific knowledge available at the time, should have known of the ingredient’s danger and presence;
- That [name of defendant] failed to provide sufficient warnings concerning the ingredient’s danger or presence;
- That [name of plaintiff] was harmed; and
- That the lack of sufficient warnings was a substantial factor in causing [name of plaintiff]’s harm.”
Additional claims may exist based on negligence or other legal theories, but the foregoing claim is particularly important since it is a strict liability offense making it much easier to prove.
- Food Service Establishments
The second category of cases involves exposure in a restaurant or other food service establishment. In order to be liable for an allergic reaction a restaurant must have provided misleading/inaccurate information or have notice of a patron’s allergy. For example, liability might exist if exposure occurs despite: 1) A menu (inaccurately) indicating a food is free of certain ingredients; 2) A restaurant undertakes food preparation despite specific notice of a customer’s allergy; or 3) A nursing home knows a patient has food allergies.
- Proving the Claim
If a reaction occurs, it is advisable to retain a sample of the food. This can make proving liability much easier. In addition to liability, the plaintiff will need to show damages. As in other injury suits, this can include medical bills, lost income, and compensation for pain and suffering. In the case of a fatal reaction, a wrongful death claim may exist in place of a personal injury action.
A Law Firm for Allergen Exposure Cases
If you or a loved one suffered an allergy due to the negligence of anyone in the food industry, call our Northern California food allergy law firm to arrange a free consultation. This is an evolving field of law made ever-more important by the growing prevalence of food allergies. Companies and individuals in the food industry must take care to consider food allergy concerns – it could be a matter of life and death.
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