Allergens in restaurant food cause many allergic reactions and deaths. Yet no federal, state, or local law adequately protects people from these harms. Although federal law requires the labeling of “major food allergens” in packaged food, there are no allergen labeling requirements for restaurant-type food. In addition, existing food safety requirements for restaurants are inadequate to prevent allergen cross contact.
The existing legal scholarship on food allergens in restaurants is limited. Much of the legal scholarship on labeling in restaurants focuses on menu labeling — the provision of calorie and other nutrition information to combat obesity. The requirements of Section 4205 of the Patient Protection and Affordable Care Act exemplify this type of labeling. Although the literature describes the problem of foodallergens in restaurants, it has not fully explored potential regulatory solutions. This Article explores how, as a first step, menu labeling regulation can inform the development of food allergen regulation to reduce the risks that allergens pose in restaurants and similar retail establishments. It also discusses how menu labeling can help anticipate and respond to potential opposition and challenges to allergen requirements.
Using menu labeling as a guide, this Article argues that certain chain restaurants and similar retail establishments should be required to furnish “major food allergen” labeling upon consumer request in order to advance public health. Labeling changes alone, however, are insufficient to protect people with food allergies. Restaurants should also be required to employ science-based practices to prevent allergen cross contact and ensure their workers are trained on food allergen management. Although state and local governments may play an important role addressing food allergen management in restaurants and advancing public health, ultimately federal action is needed.
Marie Boyd, Serving Up Allergy Labeling: Mitigating Food Allergen Risks in Restaurants, 97 Or. L. Rev. 109 (2018)