Consumers with food allergies can turn their reactions into legal action, but proving liability can be a difficult and complicated process in the U.S.
Pret a Manger said Sunday that a customer died last year after eating a supposedly dairy-free “super-veg rainbow flatbread”; the disclosure puts the focus on the serious business of food labeling.
There are government and legal protections for the 50 million Americans estimated to be dealing with allergies every year, advocates say, but there are also hurdles and loopholes that make any legal recourse complicated. It’s sometimes difficult to pinpoint legal fault and, even if liability is clear, damages might not be. What’s more, federal label laws might not cover every type of food allergy.
It’s sometimes difficult to pinpoint legal fault, even if liability is clear.
Pret a Manger said it was looking into the December 2017 death of a customer who ate the flatbread in a Bath, England shop. It was labeled as dairy-free, but the item actually contained dairy protein.
The coffee, sandwich and coffee business said it was taking legal action against a supplier. The supplier, Coyo, rejected Pret’s blame and “unfounded” claims in a lengthy statement.
Second allergy-related death of a Pret customer
It was the second allergy tragedy for the British-based chain, which, by the end of last year, had 360 stores in the U.K. and 90 in five U.S. cities in its approximately 500-store reach across the globe.
A British teenager died in 2016 after she bought an olive tapenade and artichoke baguette with traces of sesame at Heathrow Airport. Sesame was not a listed ingredient and Pret pledged to improve its labeling in the wake of 15-year-old Natasha Ednan-Laperouse’s death from anaphylactic shock.
Pret a Manger did not respond to a request for comment on lawsuits and allergen disclosure policies. But in a previous statement, Pret said “their deepest sympathies are with the family and friends of our customer in this terrible case and we will look to help them in any way we can.”
This isn’t the first time Pret’s food ingredients have been under scrutiny. In 2013, a Wall Street Journal reporter found a dead frog in her Pret a Manger niçoise salad. The chain apologized said it would work to avoid any future frog fiasco. A spokesman for the company described the frog as “an unfortunate piece of organic matter” at the time.
Anaphylaxis results in 150 deaths in America ever year
Anaphylaxis results in 150 deaths in America ever year, according to the Food and Drug Administration. Yet food allergies have an even farther reach. They trigger 200,000 annual emergency room visits and a 2013 study in the peer-reviewed journal JAMA Pediatrics pegged the yearly cost of food allergies at $25 billion.
Federal label laws might not cover every type of food allergy.
The 2004 Food Allergen Labeling and Consumer Protection Act (FALCPA) requires clear labeling of the top eight allergens: milk, eggs, fish, Crustacean shellfish, tree nuts, peanuts, wheat and soybeans.
Nonetheless, a lawyer for the Asthma and Allergy Foundation of America wrote in April court papers that there “remain numerous loopholes and complexities in the existing labeling regulations that still confuse consumers.”
One perilous head-scratcher, it noted in a Massachusetts federal case, is “foods can be labeled ‘nondairy’ yet contain sodium caseinate, a milk ingredient.”
Laws on food allergy reaction cases vary by state
State laws across the country vary on what a consumer has to prove when suing over allergies in purchased food, San Francisco attorney Steven Kronenberg said.
Some state laws require a showing of negligence, while others mandate a demonstrated “breach of warranty” for food that’s expected to be safe when it isn’t, he said. Another framework is a “strict liability” where negligence or lack thereof makes no difference. What’s important is “injury occurred in a product that was sold,” he said.
These laws are sometimes loosely worded and open to interpretation. In New York litigation related to allergic reactions, court papers say manufacturers have a duty to warn consumers “only of those reactions that are ‘common to [a] substantial number of possible users.’”
On the plus side for plaintiffs: Kronenberg said he’s seen many food allergy cases settle quickly. Food allergies kick in quick and are easier to trace, versus food poisoning cases where the incubation period – and time to eat other foods -- can be longer, he said.
Lawsuits over food poisoning cases may also have a long-term impact on restaurants. Chipotle CMG faced a spate of them, and drooping sales and stock prices, in the wake of several E.coli outbreaks in 2015 and a norovirus outbreak in a suburban Washington, D.C. store in 2017.
It can be difficult to win an allergy-related lawsuit
But a quick admission of blame in an allergic reaction case isn’t always an immediate customer victory. “Sometimes, damages are highly contested even if liability is clear,” said Kronenberg, who also happens to be seriously allergic to tree nuts.
Some ingredients that can cause serious allergies do not need to be listed on packaging under Food and Drug Administration rules.
A 34-year-old Manhattan man, David Matt, said he tried to be careful about his sesame allergy and would often carry an Epipen and Benadryl. He sued Pret a Manger over a 2015 purchase of Avocado and Roasted Corn Salsa Flatbread
State laws are sometimes loosely worded and open to interpretation.
After three bites, he said his lips swelled up and his tongue tingled. He took himself to the hospital, where he went into shock. He later returned to the eatery to check if the sandwich noted sesame in the ingredients. It didn’t.
Matt sued Pret a Manger and a bakery supplier. A Manhattan judge dismissed the case in February, noting sesame wasn’t listed as an ingredient which needed to be disclosed by the Food Allergen Labeling and Consumer Protection Act.
Matt’s lawyers argued Pret had to know sesame allergies were serious seeing that the ingredient was “considered a major allergen in various countries around the world including Canada and the European Union.” But it made no difference Canadian authorities regulated the disclosure of the nutty-tasting seed, according to Justice Sherry Klein Heitler
“From a regulatory perspective, there is no evidence that Pret a Manger violated any federal or state law pertaining to food labeling,” Heitler wrote, later adding, “The FDA does not deem sesame to be a major food allergen and does not require food manufacturers or retailers to list it as an ingredient on a food label.”
Matt’s lawyer, Ashley Andrews-Santilllo, said her client wasn’t appealing the case. But that didn’t change the fact that sesame was “a huge allergy.” She said “in the big picture for Pret, it’s not extra work” to be sure customers knew about the sesame in certain offerings.
Matt “is now very fearful of eating out in restaurants,” she said.
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