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Can I Sue a Restaurant for a Food Allergy?

By Catherine Hodder, Esq. | Reviewed by Joseph Fawbush, Esq. | Last updated on

A recent food allergy lawsuit against Disney highlights how restaurants may be liable for personal injury or wrongful death claims as a result of a customer’s injury or death from a disclosed food allergy.

A tragic event occurred in October, 2023 when Kanokporn Tangsuan and her husband ate at Raglan Road Irish Pub in Disney Spring, part of Florida’s Walt Disney Resort. She alerted the restaurant staff that she had an allergy to dairy and nuts, and the waitstaff assured her they could make her meal allergen-free.

After the meal, Tangsuan went into anaphylactic shock and died as a result of “elevated levels of dairy and nut in her system,” according to the medical examiner. Her husband is now suing Disney for wrongful death.

What Is a Food Allergy?

A food allergy is your immune system’s physical response after ingesting a food protein you are allergic to. An allergy is different than a food intolerance such as gluten or dairy. An intolerance causes digestive issues; an allergy is more dangerous.

According to the Mayo Clinic, a mild food allergy reaction may appear as:

  • Tingling or itching in the mouth.
  • Hives, itching, or eczema.
  • Swelling of the lips, face, tongue, throat, or other parts of the body.
  • Wheezing, nasal congestion, or trouble breathing.
  • Belly pain, diarrhea, nausea, or vomiting.
  • Dizziness, lightheadedness, or fainting.

A severe allergic reaction is life-threatening because it causes anaphylactic shock where your lips, tongue, and windpipe swell — causing difficulty in breathing.

People with severe food allergies have to take care not only to avoid their allergens but also to avoid cross-contamination with their allergens. For example, a person with a peanut allergy may react to a peanut-free sandwich cut with a knife used to make a peanut butter jelly sandwich.

Are There Any Food Allergy Laws?

After Congress passed the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA) and the Food Allergy Safety, Treatment, Education, and Research (FASTER) Act in 2021, all food manufacturers engaged in interstate commerce must list the top nine food allergens on their food labels.

The nine most common food allergies are:

  • Milk
  • Eggs
  • Peanuts
  • Tree nuts
  • Shellfish
  • Fish
  • Wheat
  • Soybean
  • Sesame

However, these laws only apply to manufactured food products, not restaurants.

Do Restaurants Have Allergy Awareness Laws?

While there are federal laws for labeling packaged food, currently, there are no federal food allergy laws for restaurants. There are a handful of state laws in California, Illinois, Massachusetts, Maryland, Michigan, Rhode Island, and Virginia, as well as in the cities of New York City and St. Paul, MN, that have restaurant awareness laws that require food handlers to have allergy awareness training.

For example, restaurant owners in California must train their food handlers on how to handle common food allergens and prevent cross-contamination.

However, the Americans with Disabilities Act (ADA) has been interpreted to apply to food allergies in restaurants. A food allergy restricting a diet is considered a disability under the ADA.

Is a Restaurant Liable for an Allergic Reaction?

Still, restaurants can be liable if a customer can prove the restaurant’s negligence caused an injury. For example, a restaurant could be liable for medical expenses if a customer needed medical treatment for food poisoning after eating the restaurant food.

An action for negligence has four parts: duty, breach, causation, and damage. For an action of personal injury or wrongful death for a food allergy, the plaintiff must prove that:

  • The restaurant had a duty of care, meaning they had to be knowledgeable about food safety, food allergies, and cross-contamination with allergens.
  • The restaurant breached the duty of care by ignoring a customer’s allergen information or by failing to train their food service staff properly.
  • The restaurant’s breach of duty directly caused the injury, meaning the exposure to the allergen caused the anaphylaxis and death.
  • The plaintiff suffered actual damages from the breach, which may include physical injury or death, loss of earnings, and medical bills.

A plaintiff should also prove that the restaurant had notice of a customer’s food allergy.

What Can You Do?

You should proceed with caution when dining at restaurants. According to Food Allergy Research and Education (FARE), most fatal allergic reactions occur outside the home. Before ordering at a restaurant, make your food server aware of your food allergies and double-check when they serve your food. Some people carry a card listing their allergies so the food server can bring it back and check with the chef. If you are traveling and language is a barrier, have a card with the allergen information translated.

If you have severe food allergies, allergists recommend that you always carry two epinephrine pens with you at all times. Epinephrine pens, such as Auvi-Q or Epi-Pens, are used in case of anaphylaxis.

If you or a loved one has suffered an allergic reaction from a restaurant's negligence, consult a personal injury attorney for legal advice.

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