Should restaurants ask, does anyone at the table have a food allergy?
“Does anyone at the table have a food allergy?”
This is a loaded question for foodservice and hospitality.
Loaded with questions for companies such as,
What’s my risk?
Who is responsible?
What happens if I do or don’t ask?
All great questions.
For the answers, I turned to Chad Finkelstein, Partner, Dale & Lessmann LLP, Lexpert’s Rising Stars award winner who practices in the areas of corporate, franchise, intellectual property, advertising and cannabis law.
Chad, what are the risks if a restaurant prompts the food allergy question at the table?
“It is generally the responsibility of each individual to know their own allergens, how sensitive their allergies are, and to evaluate their risk of exposure in any given situation. However, once a restaurant is informed of a patron’s allergies, some of that responsibility gets shared with the restaurant.
A restaurant has a duty to its customers to be able to inform them of what ingredients are used in their food. A restaurant must also take reasonable precautions once made aware of the existence of a food allergy. If a restaurant or one of its staff members acts negligently in handling a disclosed allergy, they can be held liable.
For example, in the case of Martin v. Interbooks Ltd. a patron was awarded $26,535.14 in damages, plus interest and costs, from a restaurant and its server. In this case, the restaurant patron disclosed his severe nut allergy to his server and inquired about whether the cheesecake contained nuts. Although the cheesecake contained walnuts, which were listed in the ingredients on the cheesecake’s packaging, the server informed the customer that it contained none. As a result of the exposure to walnuts, the patron experienced an anaphylactic reaction and was transported to the hospital. The server was found liable for not taking any steps to determine whether the cheesecake, in fact, contained nuts. The owner of the restaurant was found liable for breaching its duty to provide sufficient training to the server and for failing to instruct the server to take necessary steps to ascertain the ingredients contained in a menu item when asked by an allergic customer.
Beyond informing a patron of the actual ingredients used in a food he or she is about to consume, the restaurant must also inform a potential customer if there is a risk of cross-contact. If a restaurant has reason to believe that a customer cannot be served safely, this information should be shared with the patron. It is then up to the customer to consider the severity of his or her own allergies and to make an informed choice regarding whether it is safe to dine at a particular restaurant.”
What are the risks if the restaurant waits for the consumer to self-disclose and who is accountable in this instance if a reaction occurs?
“There is no legal obligation on the part of a restaurant to ask a patron about food allergies. The responsibility is shared between the restaurant and the customer. Failure by a customer to inform a restaurant of allergies or intolerances can absolve the restaurant of any potential liability.
However, if a patron does choose to self-disclose, responsibility shifts to the restaurant to act accordingly. The same considerations as mentioned above continue to apply. If the restaurant does not think they can safely serve the customer, the restaurant should inform the customer. If there is a risk of cross-contamination [cross-contact], the patron should be informed. Providing the customer with all relevant information will allow them to make their own informed choice regarding whether it is safe for them to eat at any particular location.”
Can you say which way is better to reduce risk?
“Restaurant liability begins as soon as any member of the staff is made aware of a customer allergy. However, just because a restaurant waits for its customers to self-disclose does not mean it faces less responsibility or potential liability. Once a patron informs a member of staff of his or her allergy, the restaurant holds the same obligations (and the same potential liability) as if the server had asked the question.
Having clear procedures in place, including a policy to ask the allergy question before a table orders, may assist a restaurant when faced with a food allergy action. If the restaurant can point to clear procedures that were followed, the restaurant’s potential liability may be reduced.
Restaurants should understand their obligations and should choose a course of action that fits best with their business practices. While asking the allergy question may lead to more patrons disclosing their allergies, it may also allow the restaurant to maintain clear policies and procedures and can prevent situations whereby a distracted or busy server does not follow the appropriate protocol.”
Do other regions or countries have legislation in place that makes it mandatory for companies to prompt the question? If so, what are the pros and cons of this type of mandate?
“There are regions that require restaurants to inform patrons of potential allergens in food. One such example is the European Union’s Regulation Number 1169/2011. In order to comply with this regulation, restaurants must notify customers of the presence of commonly allergenic ingredients on a menu. This disclosure must be made to all restaurant patrons, and not just to those customers with allergies. The method of disclosing this information is left up to the discretion of each individual restaurant. For example, a restaurant can choose to inform patrons verbally, through labelling directly on the menu, or by way of a separate pamphlet. It should be noted, however, that Regulation Number 1169/2011 does not address how to inform customers of accidental or possible cross-contact.”
*At the time of writing, we are not aware of any region or country that requires restaurants to inquire about customer allergies.
Is there another way to manage the food allergy question beyond the obvious?
“For example, some restaurants require a manager to be informed immediately once an allergy is disclosed so that the manager can oversee the order. Similarly, when an allergy is disclosed to a member of staff, some restaurants send the order to the kitchen on a uniquely coloured ticket to ensure that the allergy is made clear to the kitchen. Some restaurants choose to review each day’s daily specials with wait and kitchen staff to ensure that everyone is aware of the common allergens contained in the food items and that all staff members understand the potential cross-contact issues that are present when these items are not listed on the menu. Finally, training wait and kitchen staff on the importance of paying attention when an allergy is reported and informing them of the potential consequences of mishandling the situation will likely be very beneficial strategies.”
It is in the best interest of a restaurant to manage the food allergy question by establishing a comprehensive procedure for handling patrons with allergies and by training each employee in the details of the said procedure.
Restaurants may also benefit from implementing a policy with similar requirements to European Union Regulation Number 1169/2011. By providing customers with a list of common allergens that are present in each menu item, much of the responsibility is shifted back to the customer to determine what is or is not safe to consume. This method allows customers to make informed choices without requiring the restaurant to ask the allergy question and without leaving all responsibility with the patron to self-disclose.”
Any final thoughts or anything else to add?
“Beyond the legal considerations, there are many business considerations at play when thinking about the allergy question. For example, providing transparency regarding potential allergens and being proactive in asking about allergies may allow customers with severe allergies to feel safer eating at a specific establishment. While beyond the scope of this article, it may be beneficial for a restaurant to speak with its financial, business and marketing teams to consider any business benefits or risks that may result from prompting or failing to prompt the allergy question.”
About Chad Finkelstein
Chad Finkelstein is a partner and registered trademark agent at Dale & Lessmann LLP, and founder and chair of the firm’s franchise practice group and cannabis practice group. He practices in the areas of corporate, franchise, intellectual property, cannabis and advertising law. He was selected as a winner of Lexpert’s Rising Stars award, recognizing Canada’s leading lawyers under 40 years old. He has been recognized by his peers as a ranked lawyer in such publications as Lexpert, Who’s Who Legal: Canada, Chambers Canada and The Best Lawyers in Canada. He contributes regular columns on cannabis, franchising and branding legal issues to the National Post and The Globe & Mail, and has been featured on CTV, CBC, BNN, CityTV, CH News.
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*Note this article has been reposted and was originally posted on May 1, 2019 - no article updates have been made.
