In what is not an uncommon experience for food allergy gumshoes (I was going to say Food Allergy sleuths, but that is the title of my friend Jessica’s fantastic blog and I don’t want to encroach on her territory!), I was told just last month that if I had any questions about the safety of a food item, I should just not purchase it. Last year the version from a restaurant was “we don’t know what is in our food, you shouldn’t risk it.” To hear from a seller of shaved ice that I could not see the labels for his syrups and that I should not purchase anything was puzzling because water and sugary syrup is not a bad market for sweet sellers. You’d think they’d want to include more people.
But I don’t mind being told that someone doesn’t want my custom, it is just that the blame often lies with over lawyering. It also comes up when discussion gets to stock epinephrine (access and administration). Now, that gets under my skin a little bit. Seems to me I need to clear the air on this one for myself and my sister/brother attorneys, as I promise that the knee jerk reaction people have (to think lawyers are stirring the pot or being polemic) is not entirely true. I believe that litigation and the adversary system can hone and focus practical issues in an ever changing world of challenges to health, happiness, and safety.
In law school I took a products liability course and if you ever want to fear just about every activity or item known to modern man, it is a great class to take. (The professor was the fantastic Pavel Wonsowicz (now at UCLA) and I mention that because he was brilliant and hilarious.) At any rate, there is a lot of misinformation when it comes to public perception of tort (a civil wrong as opposed to a criminal one) law as I learned even at that stage in school because I know all too well some of the stereotypical cases used to imply that we are a litigious country.
I’ll mention, for example, the “McDonald’s coffee case” (Liebeck v. McDonald’s). In short, the public heard in snippets about the perception that a woman received a big payday because she spilled coffee on herself after obtaining it at a fast food drive-thru. The disturbing untold element is that the Plaintiff’s case looked at what the company knew about how hot they intentionally made their coffee and the foreseeability of harm to customers or that they arguably ignored warnings in the form of hundreds of prior complaints about scalding coffee. Does, for example, their claimed desire to have coffee stay hotter longer as drive-thru customers make their way to their destination tip the scales when compared with the increased risk of third degree burns like those suffered by the octogenarian Ms. Liebeck?
When you start breaking down your assumptions about motivation and responsibility, you start to understand the struggle between the letter of the law and the spirit. We can know instinctively that people should be careful with a cup of hot coffee but as a society where does defaulting to personal responsibility end? Can/should corporate entities be allowed to enjoy protection from liability, profit from consumers, and then not be responsible themselves for the strategic decisions made in product delivery and development?
Swinging back to the food disclosure issue, if a customer with food allergies were to eat at a restaurant without informing the staff of their disease and experienced a reaction, generally we could say that a reasonable restaurateur would not anticipate that their patron could have a reaction. Even so, could we argue in the face of the epidemic of food allergies that a restaurant should be on notice in a general sense and therefore make affirmative disclosures about the contents of their food? And while I’m asking questions, what would be so bad about disclosure of ingredients to shift the burden of deciding whether to consume an item onto the consumer? Refusing service is not the only way to protect against liability, after all. In the labeling context, the manufacturer that labels with a default “may contain milk” warning, for example, is refusing to serve the milk allergic customers in the same way the restaurant that tells me I should not risk purchasing their food for my child.
The decision to exclude in this case is most likely an economic one. A great read is Jonathan B. Roses’ 2011 Food and Drug Law Journal article entitled “Food Allergen Law and the Food Allergen Labeling and Consumer Protection Act of 2004: Falling Short of True Protection for Allergy Sufferers.” (You can download the full pdf here.) Roses writes:
Because of the expense of analysis required to determine if trace amounts of allergens are present in foods, or the risk of contamination in a food production or processing facility, manufacturers have a substantial cost-savings incentive to simply place precautionary warnings on all their products, ensuring protection against potential allergy litigation.
Volume 66 No. 2, pg 229.
Oddly enough, the manufacturer or food service entity may be concerned with monetary risks but I submit that it might be even cheaper to engage in safe food handling and appropriate disclosure because the benefits would reach beyond just avoiding being sued by someone secondary to an allergic event. A little prevention and mindful safety could prevent food poisoning, even.
For all the fear of litigation, Roses’ article indicates that only 6 cases from 1992 to 2000 regarding anaphylactic reactions. Id. at 232. This could be because of extensive settlement and the fact that the case law that is out there can be contradictory. If a person has a rare allergy, it might not be foreseeable that the allergen would require disclosure but if the person has a common allergy, courts have found that the allergic individual should foresee that a given food item contained that allergen. Id. at 234. Take a minute to digest (unintentional pun!) that contradiction and you’ll see the way we chip away at concepts to create law. A new case occurs and we look to the prior ones to see what precedent was set. Often the case law is such a mess than there has to be legislative intervention to change the way things work faster than would be the case through the progression of court cases when they frequently end in settlement anyway.
I have been working on this post, turning over my approach in my mind over and over only to not have a satisfactory way to distill my unease into clear terms. Brevity has never been my strong point but the benefit of a blog as a writing space is that I don’t have to write something comprehensive, I can mull and ponder and post at my own pace. Tort litigation is not the only thing on my to do list as it intersects with food allergy, but much like the famed McDonald’s case, it is my hope that if you encounter the argument that a policy is the product of “frivolous” litigation, there is more than meets the eye. Much like the incomplete food allergy label there’s a bigger story lurking in the wings.
In September I’ll be speaking on a panel at the Food Allergy Bloggers Conference (of which I am a co-owner) about some of the legalities that come up in blogging (we’re having an Intellectual property attorney as well as an attorney with experience dealing with online defamation cases speak on the same panel). If you have anything you’d like us to try to cover, be sure to let me know by getting in touch. More details are at FABlogCon.com.
Disclaimer: I’m a Nevada licensed attorney and solo-practitioner but this is in no way legal advice or intended to create an attorney client relationship. The State Bar of Nevada does not certify any attorney as an expert.