When Food Turns Deadly

WHEN FOOD TURNS DEADLY: CRIMINAL LIABILITY FOR RESTAURATEURS THAT DISREGARD PATRONS FOOD ALLERGIES

By: Taylor Gess, Volume 101 Staff Member

On January 28, 2016, the mother of a five-year-old girl used Panera’s online ordering system to purchase a grilled cheese sandwich for her peanut-allergic daughter.[1] The order’s special instructions section stated “peanut allergy is having grilled cheese.”[2] The peanut allergy was mentioned a second time when “has peanut allergy” was typed under the grilled cheese’s “prepared for” heading.[3] Despite the clear notification, the girl’s grilled cheese sandwich had two large dollops of peanut butter in the center—well beyond cross-contamination.[4] After the girl ingested one bite of the sandwich an anaphylactic reaction began.[5] Luckily, the young girl was successfully treated at the hospital for her reaction and discharged.[6] The family is bringing negligence,[7] breach of implied warranties,[8] infliction of emotional distress,[9] assault and battery,[10] and unfair and deceptive business practices[11] claims against Panera, the franchise owner, and the management company.[12] This Post explores the potential for holding restaurateurs criminally liable when a food allergic patron does not survive an anaphylactic reaction after being told their food is allergen-free.

Approximately fifteen million people in the United States have food allergies, including one in thirteen children.[13] In 2013, the Centers for Disease Control estimated that the prevalence of food allergies among children increased 50% from 1997 to 2011.[14] The Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA) amends the Food Drug and Cosmetic Act by mandating the labeling of packaged food products with the top eight allergens that cause 90-precent of reactions in food allergy sufferers.[15] However, FALCPA does not apply to allergens in restaurant settings.[16] Moreover, the Americans with Disabilities Act (ADA) sometimes considers food allergies a disability, with Department of Justice guidance stating that “some individuals with food allergies have a disability as defined by the ADA . . . [t]his would include individuals with celiac disease and others who have autoimmune responses to certain foods, the symptoms of which may include difficulty swallowing and breathing, asthma, or anaphylactic shock.”[17] This increase in the number of individuals with food allergies coupled with the potential for a deadly anaphylactic reaction from even a trace amount of an allergen and the inadequacy of current laws calls for implementing criminal penalties against a restaurateur who explicitly hinders a person’s right to safe food.[18]

In the United States, restaurant liability for serving food that causes a customer to have an allergic reaction is found in the civil law via strict liability, negligence, or breach of warranty claims.[19] First, the Restatement (Second) of Torts provides strict liability when “the product contains an ingredient to which a substantial number of the population are allergic.”[20] In these cases, “the seller is required to give warning against it, if he has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge” of the allergen’s presence.[21] Second, restaurateurs have a duty of care to provide patrons with allergy-free food once they have been made aware of an allergy; thus giving rise to a negligence claim if the allergy is not respected.[22] Third, when a worker tells an allergic patron that his food will be free of the allergen and the patron has an allergic reaction, implied warranties of merchantability and fitness may be violated.[23]

In January 2014 in the United Kingdom, a 38-year-old man, Paul Wilson, died from an anaphylactic reaction to peanuts when he was served curry containing peanut powder.[24] Like the United States Panera case, the allergic English man specified that his dish should have “no nuts.”[25] The restaurant owner, Mohammad Zaman, had switched the powder usually used in his curry dishes to a ground nut powder containing peanuts in an attempt to boost profits while continuing to promote the dishes as “nut-free.”[26] Before Wilson’s death a teenage girl had an allergic reaction to peanuts at one of Zaman’s restaurants, and food safety officials warned Zaman that he could no longer market dishes as “nut-free.”[27] Despite this warning, Zaman continued to advertise dishes as “nut-free” without heeding the serious ramifications of a nut-allergic customer eating the food.[28]

In May 2016, Zaman was convicted of gross negligent manslaughter and sentenced to six years in jail.[29] In the United Kingdom, gross negligent manslaughter has four elements: “a) the existence of a duty of care to the deceased; b) a breach of that duty of care which; c) causes (or significantly contributes) to the death of the victim; and d) the breach should be characterised as gross negligence, and therefore a crime.”[30] This standard has been interpreted to apply to conduct that is “reprehensible.”[31] Zaman’s conviction marks “the first time in Britain that someone has been convicted of manslaughter over the sale of food.”[32] The chief crown prosecutor in the United Kingdom said that Zaman’s conviction should send a clear message to the restaurant industry that if restaurateurs “ignore your responsibilities and regulations and put lives at real risk then we will not hesitate to prosecute.”[33]

The implication of the Zaman precedent will be felt outside the United Kingdom. Prominent United States allergy advocate and attorney Mary Vargas stated that the “duty of care” message should be a “wakeup call” for restaurateurs.[34] In the United States, the United Kingdom’s gross negligent manslaughter standard used to convict Zaman ought to be viewed as comparable to the Model Penal Code’s (MPC) reckless homicide. The MPC assigns the culpability level of recklessness when the defendant “consciously disregards a substantial and unjustifiable risk” that the proscribed result would follow from his conduct and it is a “gross deviation from the standard of conduct a law-abiding person would observe in the actor’s situation.”[35] The MPC’s recklessness standard encompasses the United Kingdom’s gross negligent manslaughter standard because an action that is negligent to the extent it is deemed “reprehensible” is inherently “consciously disregard[ing] a substantial and unjustifiable risk.”

United States laws aiming to protect food allergic individuals have greatly developed in recent decades. Yet, there is still improvement to be made in regards to restaurant dining. Establishing a duty of care, whether through criminal liability or state laws imposing civil penalties,[36] is one step towards deterring restaurateurs from carelessly handling potentially life-threatening food allergies.

  1. Complaint at 9, A.R. v. Panera, No. 16:81-cv-01584 (Mass. Super. June 2, 2016); see also Neil Swidey, Panera Sued Over Sandwich Served to Child with Allergy, Boston Globe (June 6, 2016), https://www.bostonglobe.com/metro/2016/06/05/family-allergic-child-sues-panera-for-putting-peanut-butter-grilled-cheese-sandwich/ugk2bWDfWSui6f8wSFimdO/story.html.
  2. Paul Antico, Panera Disaster: The Food Allergy Lawsuit & What Went Wrong, Allergy Eats (June 13, 2016), https://www.allergyeats.com/panera-disaster-the-food-allergy-lawsuit-and-why-everything-went-wrong.
  3. Id.
  4. Complaint, supra note 1, at 15.
  5. Id. at 18–28; see also Anaphylaxis, Food Allergy Res. & Educ., http://www.foodallergy.org/anaphylaxis (last visited Jan. 20, 2017) (describing anaphylaxis as a severe immune system reaction to a food protein affecting many body systems, outlining treatment options, and discussing coping mechanisms).
  6. Complaint, supra note 1, at 28.
  7. Id. at 34–41.
  8. Id. at 42–48.
  9. Id. at 58–72.
  10. Id. at 73–84.
  11. Id. at 49–57.
  12. Id. at 2–4.
  13. Facts and Statistics, Food Allergy Res. & Educ., https://www.foodallergy.org/facts-and-stats (last visited Jan. 20, 2017).
  14. Id.
  15. The top eight allergens are milk, eggs, fish, shellfish, tree nuts, peanuts, wheat, and soybeans. Food Allergen Labeling and Consumer Protection Act of 2004, Pub. L. No. 108–282, Title II § 202(2)(A), 118 Stat. 891 (codified as amended in various sections of 21 U.S.C.); see also Jonathan B. Roses, Food Allergen Law and the Food Allergen Labeling and Consumer Protection Act of 2004: Falling Short of True Protection for Food Allergy Sufferers, 66 Food & Drug L.J. 225, 226–31 (2011) (providing an overview of food allergy law history); Food Allergen Labeling and Consumer Protection Act of 2004 Questions and Answers, U.S. Food and Drug Administration (July 18, 2006), http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/Allergens/ucm106890.htm#q8 (answering common questions about FALCPA requirements).
  16. Food Allergen Labeling and Consumer Protection Act of 2004 Questions and Answers, supra note 15 (“FALCPA’s labeling requirements do not apply to foods that are placed in a wrapper or container in response to a consumer’s order.”).
  17. Questions and Answers About the Lesley University Agreement and Potential Implications for Individuals with Food Allergies, U.S. Dep’t of Justice, Civil Rights Div., (Jan. 2013), https://www.ada.gov/q&a_lesley_university.htm.
  18. For a discussion regarding the inadequacy of law protecting food allergy suffers, see Aimee Nienstadt, The Insufficiency of the Law Surrounding Food Allergies, 36 Pace L. Rev. 595 (2016).
  19. William E. Adams, How Restaurants and Bars Can Avoid Allergy Risks, Law360 (Aug. 19, 2015), http://www.law360.com/articles/693116/how-restaurants-and-bars-can-avoid-allergy-risks.
  20. Restatement (Second) of Torts § 402A cmt. j (Am. Law Inst. 1965).
  21. Id.; see also Sydney Knell Leavitt, Death by Chicken: The Changing Face of Allergy Awareness in Restaurants and What to Do When Food Fights Back, 42 U. Tol. L. Rev. 963, 969–73 (2011).
  22. Adams, supra note 19; see also Leavitt, supra note 21 at 974–77.
  23. Adams, supra note 19; see also Leavitt, supra note 21 at 979.
  24. Lexi Finnigan, “Take Allergies Seriously or Face Jail” Says CPS After Curry House Owner Convicted of Manslaughter, The Telegraph (May 23, 2016), http://www.telegraph.co.uk/news/2016/05/23/curry-house-owner-convicted-of-manslaughter-of-customer-with-pea.
  25. Id.
  26. Id.
  27. Id.
  28. Id.
  29. Id.
  30. Homicide: Murder and Manslaughter, Crown Prosecution Serv. (CPS), http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/#gross (last visited Jan. 20, 2017).
  31. R v. Misra [2005] 1 Cr. App. R. 328, 328 (“[I]t was required that the circumstances were so reprehensible as to amount to gross negligence . . . . The negligence had to be so bad, that if all the other ingredients of the offence were proved, it amounted to a crime and was punishable as such.”).
  32. Kimiko De Freytas-Tamura, British Restaurateur Sentenced to 6 Years After Peanut Allergy Death, N.Y. Times (May 23, 2016), http://www.nytimes.com/2016/05/24/world/europe/british-restaurateur-sentenced-to-6-years-after-peanut-allergy-death.html.
  33. Finnigan, supra note 24.
  34. Ishani Nath, Restaurant Owner’s Jailing Sets Precedent, Showing “Duty of Care” to Allergic Customers, Allergic Living, http://allergicliving.com/2016/06/16/restaurant-owners-jailing-sets-precedent-showing-duty-of-care-to-allergic-customers (last visited Jan. 20, 2017).
  35. Model Penal Code § 2.02(2)(c) (Am. Law Inst. 1981).
  36. A route to improve food allergy sufferers’ restaurant safety other than deterring via the threat of criminal liability is passing state laws that create a “Food Allergy Friendly” designation for restaurants. See Jessica L. Brewer, To Eat or Not to Eat?: How Ohio Can Foster More Confidence Between Restaurants and Food Allergic Individuals, 41 U. Dayton L. Rev. 303, 321 (2016). For an overview of current state law in this area, see Food Allergies and Restaurants, Food Allergy Res. & Educ., http://www.foodallergy.org/advocacy/restaurants (last visited Jan. 20, 2017).
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