Food Allergy Bill For Restaurants

Some states, including Massachusetts, Rhode Island, and Maryland, have enacted bills in the past two years, in an effort to make dining out at restaurants safer for food allergy customers.  The bills general require that the restaurant post signs requiring patrons to inform the restaurant of any food allergies, that the food preparation and sanitation certification process include a video on food allergies, that posters about food allergies be displayed in the food preparation area, and that restaurants can choose to be designated as "allergy friendly" by complying with certain requirements.

The feedback on these laws on other allergy blogs and websites seems to be that they are a great step in the right direction, but they do not go far enough.  Illinois has a very similar bill pending in the state senate right now.  Tomorrow, I have a meeting with Senator Cunningham and hopefully Representative Burke to discuss the pending bill.  The Illinois Senate Bill 0037 is available here.  Senate Bill 0037

While it is extremely important that the government do something to educate restaurants and food preparers about food allergies, it seems like the only material improvement as a result of this proposed law would be the food allergy friendly designation-- if it's done right.  Some criticisms of the other laws enacted is that the allergy friendly designation may lull the customer into a false sense of safety at a restaurant because the requirements are not tight enough.  Another criticism was that the requirement for every restaurant (not just designated allergy friendly restaurants) to place on their menu that customers should inform staff about food allergies, causes customers to interpret such a note as "wow, this restaurant is aware of food allergy issues," when in fact, the restaurant may not be safe at all.  The designation should better read "State law requires that we inform customers that they should tell restaurant staff of food allergies." 

So, tomorrow at my meeting, I will be giving a long list of suggestions for requirements a restaurant must meet in order to win the title "allergy friendly" (some of which I admittedly borrowed from comments on other websites related to other laws), including:
  

1.       Staff takes food allergies seriously, is courteous and treats customers with respect.

2.       Mandatory training for all staff for:

a.       understand food allergies and anaphylaxis;

b.      cross contamination and how to prevent it;

c.       restaurant procedures for handling food allergic customer’s orders, including who is the designated person to handle the orders and the duties of that designated person in preparing the food.

d.      Staff trained in food allergy emergency plan- call 911, how to use epinephrine, etc.

3.       Formal training and certification, which has periodic renewal.

4.       Employee who answers the phone is knowledgeable about ingredients and food allergy procedures in restaurant.

5.       For sit down restaurants, a way to designate a food allergy table when it is reserved and option to take customer’s phone number so chef can call ahead of time.

6.       Staff able to clearly communicate the food allergy policy to customer.

7.       Manager or chef willing to visit food allergy customer’s table to discuss meal before ordering.

8.       Clear protocol for communication of food allergies from front of house to chef.

9.       Means to designate that a specific dish is a food allergy order.

10.   For food allergy orders, designation of one person to take order, prepare food and deliver food to customer.

11.   Any written orders have clear and obvious food allergy notice.

12.   Staff willing to take guidance from customer about how to prepare food if necessary.

13.   Separate cleaned and prep areas for food allergy orders.

14.   Separate cookware for each food allergy order.

15.   Before each food allergy order preparation, wash hands and/or change gloves.

16.   Option to get a state designation or certification of a restaurant which does not use specific allergens, where allergen is not on the premises at all-  ie peanut free restaurant, milk and egg free (vegan) restaurant.

17.   Allergy menus available, with symbols of which items contain each of top 8 allergens.

18.   Ingredient list for each menu item available, including cooking oils and other things fried in deep fryers with item.

19.   Online menus and ingredients available.

If anyone reading this blog has any further suggestions, I would love to hear them.  Hopefully, I get a good reception from the legislators tomorrow and I will definitely post an update. 

Pay Attention This is Important: Are Food Allergies a Disabilities Under the ADA?

So, severe life threatening food allergies are a qualified disability under the Americans with Disabilities Act ("ADA"), right?  Did you know that no federal court has specifically ruled that they are?

Last winter, there was a lot of discussion in the press about the Department of Justice's settlement with Lesley University, in which basically assumed that the students with severe food allergies had qualified disabilities under the ADA.  Q&A Lesley Settlement  But, that was a settlement, which is not binding on courts or other universities.  If it had been a District Court decision, it would be binding on all other courts in that jurisdiction and courts outside the jurisdiction would consider it advisory.  Universities would certainly feel compelled to take notice of a federal court decision.

That is not to say that schools and universities have not taken notice of the settlement, because they have.  But still, if a school decides to take the position that a life threatening food allergy is not a disability qualified under the ADA, there is no decision for a student to rely upon in fighting that decision.  Usually, the problems arise when a school is not saying the student does not have a disability, but the school and the student's parents disagree as to how much must be done to accommodate the student.

In Williams v. Daniels, food allergy parents have sued their son's principal, superintendent, and school district for not adequately protecting their son who is severely allergic to peanuts.  The case is pending in the United States District Court, Eastern District of Michigan, case number 12-cv-15387.  In the complaint, the plaintiffs allege, among other things, that

1)   the school agreed on safe popsicles for a treat to be handed out and then, without notice, switched the treat without approval of the parents;

2)   the school reviewed items to be sold as a fundraiser with the food allergy parents, but subsequently the school added items which were not safe and then the day the items were to be picked up by other parents, the food allergy parents were told to pick up their child from school early;

3)  the food allergic child was repetitively bullied by his classmates and the principal refused to take any action to stop the harassment; and

4)  the school sent a note home to all parents, naming the food allergic child by name, which caused retaliation from teachers, staff and other students, blaming the food allergic student for the restrictions on treats and snacks.

Why is this case important?  Because Count I of the complaint alleges a violation of the Americans with Disabilities Act.  The District Court is asked to decide whether the severely food allergic child is a "qualified individual" under the ADA.  If the court finds that he is, food allergic kids will have some legal precedent to support protection under the ADA.  If the court finds that severe food allergies are not a protected disability, it could be a devastating blow to the movement towards protecting food allergic kids in schools and elsewhere. 

The case is in the very early stages, so it may not even end in a judgment, if it is settled first.  However, it is interesting to review some of the defenses asserted by the school, such as qualified governmental immunity (not a valid defense in this circumstance), that the food allergic kid "was at all times provided a free appropriate public education," and there are no damages or the damages are de minimis.  It will also be interesting to see what facts come out about the alleged discrimination by the school and the alleged bullying.

I will continue to watch this one and provide any important updates, which I don't expect to happen until 2014 sometime.   
 

How Safe is Our Food? FDA Recalls for Undeclared Food Allergens Increasing Trend

"Allergens were the single largest cause of food recalls, composing approximately 60 percent of recalls initiated in the second quarter [2013], up from 34 percent in the first quarter.  Allergens have been the first or second largest cause of [FDA] food recalls in the past six quarters."  Stericycle Expert RECALL- Recall Index- 2nd Quarter 2013.

 

The Food and Drug Administration ("FDA") is the government agency of the Department of Health and Human Services which regulates food, except for certain farmed and raw products, including but not limited to meat, poultry, eggs, and milk, which is regulated by the Food Safety and Inspection Service ("FSIS"), an agency of the U.S. Department of Agriculture ("USDA").  Both have processes for recalling foods for undeclared allergens. 

 

There are three basic ways a product can be recalled for containing an undeclared food allergen:

 

1) Someone has an allergic reaction to the product and reports the suspected undeclared allergen.  This would require follow up by either the company or the FDA or FSIS to test the product.  If you get sick from a suspected undeclared allergen, always save the product in the freezer, so it can be tested.

2)  The company self-tests and realizes there has been a breach of its safety protocol and volunteers to recall the product.

3) The FDA or FSIS send in inspectors who test the products and find an undeclared allergen.

 

Let's talk "May Contain" or "Manufactured on Shared Equipment" or "Manufactured in a Facility" statements (or "Squishy Statements").  FALCPA does not require these specific statements.  What FALCPA requires is black and white:  If the food contains one of the top 8 allergens, then that allergen must be disclosed as an ingredient on the label.   

 

This has created a gray area in labeling, because an allergen may not be an intended ingredient, but it may find its way into the product by cross contamination.  If the food does contain an allergen through cross contamination, it is not declared on the label, and someone has an allergic reaction, the label is not FALCPA compliant and the company has liability. 

 

So why Squishy Statements instead of just testing the food?  The ELISA tests used by manufacturers to test food for allergens can only be calibrated to a certain parts per million ("ppm"), so they cannot really know the level of cross contamination.  This is a problem when the tests for a food allergen are not as sensitive as a food allergic person.  For example, a peanut ELISA may only detect peanuts to 2.5 ppm, but a severely allergic person may react to 0.4 ppm.  Food Safety Magazine Article  So, the ELISA test may come back negative, but the peanut allergic consumer may have an allergic reaction from the product which contains a minute amount of allergen because of shared equipment or facility.  This is how the birth of the Squishy Statements came about. 

 

Since there is no requirement for a manufacturer to put a Squishy Statement on their product, even if it is made in a facility or on equipment with an allergen, some simply don't.  Then there are some manufacturers who, with or without a Squishy Statement, don't test for the allergens if they are not on the ingredient list.  Note, that in either case, if the product is actually contaminated with the allergen, the manufacture is not in compliance with FALCPA in these circumstances.  It is the job of the FDA and FSIS to protect against these bad practices or even accidental contaminations. 

 

So, how are the FDA and FSIS different in their processes?  The FDA seemed to really be the first agency to start rapidly recalling products after the Food Allergy Labeling and Consumer Protection Act of 2004 ("FALCPA") was enacted.  However, many of those recalls were voluntary recalls by manufacturers trying work out the kinks in complying with the Act.  In general, the FDA is more reactive and the FSIS is more proactive when it comes to product labeling.  The FSIS is more focused on the labeling up front, before there is a problem.  However, until recently, while the FSIS was focused on labeling generally, it was not focused on food allergens.  That tide seems to be changing.

 

A recent notice issued by the FSIS directs its food inspectors to spend time specifically examining the way a food manufacturing plant treats food allergens.  This includes determining which of the top 8 (eggs, milk, peanut, tree nuts, fish, shellfish, wheat, soy) are contained in the facility, how such allergens are kept separate from other foods, examining all sauces and additives to meats and other foods, and looking at the labels of the products to make sure they adequately disclose all allergens.  Note, this is a proactive inspection- before FSIS is notified of any problem.  This notice, which was issued in April 2013, is available online.  FSIS NOTICE 

 

The recent FSIS notice is likely a result of the increase in recalls for undeclared allergens, which exceed FSIS recalls for pathogens by far. Stericycle USDA Report - 2nd Quarter 2013  Similarly, undeclared allergens were 60% of the recalls by the FDA for the same quarter.   Stericycle Expert RECALL- Recall Index- 2nd Quarter 2013. 

 

So, how do we keep our kids safe in light of the fact that millions of units of products with undeclared allergens are entering our grocery stores?  First, watch the recalls yourself.  You can do this by checking here FDA Recalls every few days or once a week to make sure that nothing in your house or on your grocery list was recalled or sign up here FDA Email for email alerts of recalls from the FDA, as they occur.  Second, do not take the chance on products with Squishy Statements.  Those statements are put there to alert you to a risk.  Do not ignore them.  The companies may be trying to comply with FALCPA, but cannot really know whether their product contains the allergen because the testing is not there yet. 

 

While Squishy Statements and recalls are how we are protected, no bite is ever risk free. 

   

 

Guidelines for Managing Life-Threatening Food Allergies in Illinois Schools - How They Can Help You Even if You Don't Live in Illinois

Does your school district have a food allergy policy?  Did you know that if it's a public school in Illinois, it is a requirement to have district wide food allergy management guidelines in place?

Like many requirements for which the schools get no State money, often referred to as "unfunded mandates," sometimes school districts do the minimum amount necessary to comply with the requirement.  For that reason, if you live in Illinois, you should find out what your district's policies are and whether they are sufficient to protect severely food allergic students.  If they are sufficient, find out whether your school is actually following the district guidelines.

If you live outside of Illinois, you should find out if your school district has food allergy guidelines and, if not, lobby it to create guidelines for managing food allergies. 

Start by educating yourself about the State guidelines.  In August 2009, the Illinois General Assembly passed Public Act 96-0349.  This Act required the Illinois State Board of Education (ISBE), in conjunction with the Illinois Department of Public Health (IDPH), to appoint a committee to create guidelines for managing life-threatening food allergies in Illinois schools.  The committee was comprised of medical experts in food allergies, representatives on behalf of students with food allergies, principals and other representatives from public schools, a State Representative, and statewide teacher's organizations.

I was a proud member of that committee, serving as an attorney and representative on behalf of students with food allergies.  We created the Guidelines for Managing Life-Threatening Food Allergies in Illinois Schools, which the ISBE and IDPH adopted.  Creating these guidelines caused us to consider every aspect of the day of a food allergic child, as well as how making certain accommodations would affect the school staff.

Among other things, the guidelines address the classroom, class parties, cafeterias and lunchrooms, custodial staff, school buses and transportation, field trips, food allergy law, 504 plans, Emergency Action Plans, nursing staff and administration of epinephrine.  We had to consider things like while in urban and suburban schools, kids typically eat in a lunch room, in more rural areas, kids sometimes eat in their classrooms because their school is small.  In those rural schools, banning an allergen from the classroom might not be a realistic option.  Or that some schools do not have a nurse on staff or share a nurse with other schools.  We learned that some teachers refuse to agree to administer epinephrine, because they do not want the responsibility, and cannot be forced to do so or that some teachers are worried about liability.  Just like every kid is different in the way they react to allergens, every school is different in the facilities and staff available.  The guidelines account for all of these variables, and because every situation is different, it is important that you advocate for your food allergic child's specific needs and circumstances.

If you are in the process of developing a 504 Plan with your school, it would be a good exercise to read through the guidelines, even if you do not live in Illinois, because they will cause you to consider things that you likely did not think about in your child's school day.  They also contain sample 504 Plans and Emergency Action Plans. 

NOTE:  Other States have created similar guidelines and I will try compile all of the States' guidelines in a future post.
 

Back to School and Protecting a Food Allergic Child

Well, it's that time again; back to school time.  For most parents it's a frantic time of getting back on a schedule and shopping for all of those supplies for the new school year.  But for food allergy parents, it's a time for anxiety and worry that the new school, teachers, and administration will be able to keep your kid safe.

This is my first post to the blog and I wanted to start by commenting on this article:  http://www.mlive.com/education/index.ssf/2013/08/food_allergies_a_silent_disabi.html.  There are a few things I want to point out. 

First, there is a comment about how doctors do not "go that far" to recommend a peanut free environment or that the custodial staff use separate cleaning products to wipe off the area where a food allergic kid eats.  Obviously, it is a case by case basis as to what a child needs to be safe, but the more cautious, the better.  Many doctors who do not live the food allergy life style have no idea what it takes to keep the kids safe.  They are not in our shoes watching the kids get hives, have asthma attacks and frankly sometimes dodge their allergens on a daily basis.  As it stands, however, the doctors' notes are necessary in order to require a school to make accommodations to protect a food allergic child.  Doctors do need to "go that far" more often.  They need to stand up and advocate for their patients.  Food allergy parents need to insist that the doctors listen to every story about every reaction your child has had in order to fully understand what protections your child needs. And you need to be direct and ask the doctor for exactly what you want the note to the school to say.  The doctor will not sign something that is wrong, but I believe often they do not know what to write, so you need to help them help you.

Second, a parent in Michigan actually sued her school district because it was nut free!  I know it's an inconvenience for a child to not get to eat nuts in school, but bringing a lawsuit is an even bigger inconvenience.  As a lawyer, I know how financially and emotionally taxing, and stressful any lawsuit can be, so it is a ridiculous act of selfishness on that parent's part to go through that much effort to fight a rule put in place to protect other children in the school.  Luckily, she lost.  I am going to try to find more information on that suit and write a separate post later.

Third, there really is no way to describe the sunken feeling food allergy parents feel at this time of year without experiencing it.  Schools are required to do certain things to protect your child, but as with everything in law and medicine, and especially where the two meet, it's a subjective process.  This is the time when you are your child's best advocate and you should become familiar with not only the law, but with the prior food allergy rules and precautions adopted by your school.  A starting point is to first understand that life threatening food allergies are disabilities and should be treated as such by the school.