Approximately fifteen million Americans suffer from one or more food allergies. About a third of these individuals are children. That works out to about two children in every school classroom. These allergies can cause serious or fatal personal injury as well as death.
In the second half of 2018, food allergies killed at least five children. Two teenagers died after consuming peanuts and sesame seeds; two victims under the age of seven years old died from a dairy allergy, and one victim was an 11 year old boy who may have died due to airborne fish protein.
In situations like these, multiple parties may be at least partially responsible. Victims need diligent representation from dedicated attorneys, like the ones at Napoli Shkolnik PLLC. From our New York headquarters, we branch out across the nation to obtain compensation and justice for victims and their loved ones. The financial compensation helps victims and their families cope with the staggering losses that these tragedies cause. The justice we obtain helps prevent future harm to other people. And as personal injury attorneys, we feel that these two things are our mission as legal professionals.
Types of Food Allergies
A food allergy is a condition in which exposure to a certain food will cause a harmful reaction. The allergic reaction, which is an immune response, will occur because the immune system attacks proteins in the food that are normally harmless to others. The symptoms can range from mild (redness, itchiness or hives) to more severe (vomiting, throat closure or tightening, difficulty breathing and even death). Anaphylaxis is the most serious allergic reaction as it is sudden in onset and can lead to death.
The Food and Drug Administration (FDA) has declared eight major food allergens: milk, egg, peanut, tree nuts, wheat, soy, fish and crustacean shellfish. These allergens were designated because they are responsible for most of the serious food allergy reactions in the United States. Sesame is emerging as a nationwide concern and there is a movement to have it added to the FDA’s list.
Some of the more common food allergies include:
- Eggs: An egg allergy may actually be a protein allergy. The body adversely reacts to the protein in both egg whites and egg yolks. This food allergy is one of the most common and most severe, especially among children. Moreover, people with egg allergies cannot tolerate influenza vaccines.
- Fish: Almost half of the people with fish allergies had no symptoms until they reached adulthood. Typically, these individuals have problems with either shellfish or finned fish, but not with both. These people should be especially vigilant at supermarkets. When possible, many shopkeepers substitute less expensive ingredients for higher-quality kinds of fish.
- Milk: Doctors believe this allergy concerns one of three milk proteins: alpha-lactalbumin, casein, and beta-lactalbumin. A dairy allergy is not the same thing as lactose intolerance. These individuals cannot digest the lactose (sugar) in milk, and lactose intolerance is never a serious or fatal condition.
- Peanuts: Peanut allergies cause more anaphylactic episodes than any other type of food allergy. Peanuts and peanut butter are almost everywhere, especially in restaurants.
- Wheat: Breads and any foods that contain flour also contain wheat. But nonfood items, such as Play-Doh, many cosmetics, and most bath products, also contain wheat. Beware of products that bear the “gluten-free” label (GF). Many of these foods still contain traces of rye and/or barley.
What Can Be Done to Keep You and Your Family Safe
A way to prevent allergic reactions to certain foods is to avoid contact with the items altogether. This is much easier said than done. People with food allergies are not allergic to the food, but to the molecular compounds in the food. Therefore, ambient exposure is a significant problem. A policy such as placing children with peanut allergies at separate tables may not offer sufficient protection.
There is no cure for a food allergy. Learning to recognize and treat symptoms is the first step. Once a serious allergic reaction (anaphylaxis) begins, the drug epinephrine is the only effective treatment. There is currently an ongoing national shortage of epinephrine auto-injectors.
Failure to Train Staff
Many restaurant owners may not properly train wait staff on the dangers of food allergies. If one person in a party is allergic to fish, a plate two or three seats away could cause an adverse reaction. The standard of care is clear. Wait staff should proactively and politely ask customers if anyone at the table has a food allergy. If that’s the case, the staff should know what to do. That could mean refusing to take an order for a potentially reactive food or offering to move the party to another table. If a restaurant or other business falls short of the standard of care, that restaurant is presumptively negligent.
In all food allergy negligence matters, the restaurant, grocery store, food packaging firm, or other company is responsible for damages. According to the respondeat superior doctrine, companies are legally responsible for the negligent acts their employees commit during the scope of their employment. Respondeat superior (“let the master answer”) and other third-party liability theories give victims an additional source of recovery. That is very important in wrongful death and other catastrophic injury claims.
In 2013, the CDC released the first national comprehensive guidelines for managing food allergies in schools as studies show that 16 to 18% of school-age children with food allergies have had an allergic reaction while in school. It is important to ensure that your school’s policies are in line with federal and state laws.
Failure to Follow Cross-Contamination Standards
Cross-contamination can occur when the molecules from one food are transmitted through improper food handling, insufficient cleaning protocols, and travel through the air, infecting another food. The Food and Drug Administration has standards regarding cross-contamination. This problem is quite common in many busy restaurant kitchens. Chefs and other food preparation professionals must be especially cognizant of things like:
- Campylobacter (undercooked or raw meat or shellfish),
- Clostridium perfringens (meats and meat products, like gravy, left at room temperature),
- Failing to keep separate food station for known allergens; and
- Vibrio vulnificus (any raw or undercooked seafood).
Once a food is contaminated, it’s almost impossible to undo. If someone removes the nuts from a scoop of ice cream, the peanut molecules are already embedded in the ice cream.
Cross-contamination falls under a lack of ordinary care. Food preparation professionals are held to a higher legal standard than amateur chefs. Cross-contamination in professional food preparation areas, like restaurants or butcher shops, is simply not acceptable.
Failure to Warn
The 2004 Food Allergen Labeling Consumer Protection Act (FALCPA) requires mandatory labels on all foods which contain:
- Crustacean (shellfish),
- Tree nuts,
- Peanuts, and
There are other food allergies in addition to those outlined above. But according to the Food and Drug Administration, these eight account for approximately 90 percent of the food allergies in the United States.
For these eight, the label must be specific. It must name the exact type of food. For example, “contains nuts” is not good enough. The label must specify the type of nut (e.g. peanuts, almonds, walnuts, or coconuts).
FALCPA applies to vitamins and dietary supplements, packaged foods, infant formula and infant foods, medical foods, and conventional foods. There are a few exceptions, including fresh fruits or vegetables and some highly-refined food oils.
Failure to adhere to labeling requirements may mean that the victim/plaintiff has a defective product claim. In these cases, the defendant may be liable for damages as a matter of law.
Food allergies affect millions of Americans and one stray particle can cause a serious or fatal reaction. For a free consultation with an experienced personal injury attorney, contact Napoli Shkolnik PLLC.