Food or Foe? The Need for Federally Mandated Food Allergy Training in Restaurants

In the United States, food allergies affect at least 10.8% of adults and 8% of children, representing more than 26 million people. [1] A food allergy is a condition in which the immune system identifies a specific food or substance as a threat and attacks it by releasing histamine, triggering a range of mild to severe reactions. [2] Milder reactions can quickly escalate into anaphylaxis, a life-threatening response often associated with increased heart rate, a drop in blood pressure, and throat closure. The only way to reverse these symptoms is by administering a form of adrenaline called epinephrine. However, depending on factors such as how long one waits before treating themself and other medical complications, they may require multiple doses or the epinephrine may be entirely ineffective. [3] 

For individuals with food allergies, dining out is an inherently risky and often daunting endeavor. They essentially entrust their lives to restaurant staff and can only hope the server and chef will heed their countless allergy warnings. Misinformation and ignorance about food allergies are significant issues in the food industry, explaining one study’s findings that dining establishments are the second most common location for allergic reactions to occur. [4] Based on data from about 2,800 individuals, 53.9% of reactions in restaurants occurred despite staff being informed of the allergy, and 13.7% occurred despite staff being informed and allergens being indicated on the menu. [5] Given the lack of regulations governing how restaurants manage allergies, many establishments do not take sufficient precautions and are ill-equipped to protect food-allergic customers, resulting in devastating consequences. When accidents happen, victims and their families have little legal recourse against the dining establishment because proving negligence is difficult. If they choose to sue, they must rehash their trauma and endure an emotionally taxing process that either leads to a settlement or a ruling in the defendant’s favor. [6] Therefore, to better protect the food allergy community, Congress must pass a federal law requiring all restaurant employees to undergo food allergy training. The training should address the dangers of severe allergies, prevention of cross-contamination, and proper communication between the kitchen and the patron, ensuring staff awareness and establishing safeguards that will help save lives. Additionally, a federal statute would make available an alternative negligence claim against restaurants that fail to uphold training standards, easing the legal burden on victims.

Over the past two decades, legislators have increasingly recognized the dangers of food allergies, prompting new federal protections. For instance, in 2008, Congress amended the Americans with Disabilities Act (ADA) to encourage courts to interpret a severe food allergy as a disability. [7] Four years later, Lesley University’s Agreement with the Department of Justice (U.S. DOJ) set a standard for universities to accommodate students with food allergies in compliance with the ADA. [8] The food allergy community also celebrated the Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA), which requires food labels to clearly state major allergens and gives food-allergic people more freedom and confidence to eat packaged foods. [9] However, FALCPA’s weak point is that it disregards warnings of cross-contact on production lines, leading manufacturers to list allergens that are unlikely to even be in their foods to reduce liability. [10] This overcompensation creates unnecessary avoidance among food-allergic consumers and undermines the law’s purpose. [11] Additionally, FALCPA does not extend to allergen labeling on restaurant menus, underscoring the fact that dining establishments are not subject to any federal food allergy regulations. [12] Existing allergy legislation is therefore imbalanced, prioritizing the safety of packaged foods over addressing insufficient labeling and allergy misinformation in restaurants. [13]

Several states and cities have spearheaded restaurant food allergy regulations in response to federal inaction. In Rhode Island, for example, restaurants must display an informational poster about allergies directed at staff. [14] They are also expected to employ one manager who understands how meals for allergic customers should be prepared, and their menus must contain a notice asking diners to inform staff of any allergies. [15] Similarly, Massachusetts law instructs restaurants to have a “food certified manager” who has watched one video on food allergies as well as an “alternate person-in charge.” [16] Both states require food establishments to ensure all staff are allergy aware, though they only provide formal training guidelines for the manager. [17] Depending on the depth of the training, ideally the manager/person-in charge handles each food-allergic customer’s order, is prepared to answer their questions, and can communicate concerns to and from the chef. [18] Due to a lack of federal oversight, however, only certain states afford food-allergic patrons such protections. In every other part of the country, they are left vulnerable to restaurant ignorance and take a significant risk each time they dine out. 

State-level food allergy laws are crucial developments in restaurant regulation, but they fall short of requiring formal training for all employees. Suppose the trained manager leaves certain aspects of ordering to an inadequately trained server: the server may not treat the allergy seriously or recognize the risks of cross-contamination, and consequently may not inform the chef of the allergy. Certain items are under their direct control: they could bring a drink, complimentary bread, or even flavored coffee creamer to the customer without stopping to consider whether it contains the allergen(s) or reading the ingredients. Such incidents are more likely to occur when restaurants are given flexibility in staff training. A stronger preventative measure is requiring all workers who come in contact with customers and/or their food to undergo standardized training. [19] Waiters should learn about allergen severity, allergens on the menu, effective communication with the patron and the chef, and all possible sources of allergen exposure. Similarly, chefs should be taught to cook dishes flagged for food allergies separately and to change gloves/clean their surfaces. If instituted at the federal level, stricter training mandates would better protect allergic individuals and ensure they receive the same level of care from all restaurants they dine at. 

If a patron experiences an allergic reaction at the hands of a restaurant, there are limited legal theories they can draw on in a lawsuit. The breach of warranty claim, for example, is less common in food allergy cases but requires showing that the defendant assured the plaintiff that their food was safe and that this assurance was false. [20] Given the difficulty of proving a promise was made and that the food in question caused the allergic reaction, breach of warranty claims are likely to fail. [21] Victims more often rely on strict liability failure to warn, under which a warning is necessary when the ingredient is one that “a substantial number” of people are allergic to and when customers would not expect its presence in the dish. [22] However, because courts have not defined what constitutes a “substantial number,” and because anticipated risks vary by food and context, plaintiffs struggle to establish that restaurants owed a duty to warn or that their warning was inadequate. [23] As a result, allergy cases often fail to meet the strict evidentiary threshold for recovery. 

A third, commonly used claim is negligence, specifically ordinary negligence, negligence with res ipsa loquitur, and negligence per se. [24] These doctrines share basic elements but require different forms of evidence. To be guilty of ordinary negligence, the defendant must have had a duty to care for the plaintiff, must have breached that duty by facilitating allergen exposure, and this exposure must have caused the reaction, all of which are challenging for the plaintiff to prove. [25] When they lack strong evidence of causation, they can turn to the principle of res ipsa loquitur. The theory allows the use of circumstantial evidence to demonstrate that the reaction would not have occurred absent the restaurant’s negligence, and that the plaintiff’s actions did not contribute to the cause. [26] However, a delayed allergic reaction can obscure causation, and other plausible sources of exposure detract from the plaintiff’s argument. [27] Lastly, negligence per se implicates the defendant if they breached their duty of care by violating a specific statute. [28] The statute must intend to prevent the type of harm that the defendant caused, and the plaintiff must be part of the group the statute intends to protect. [29] Unfortunately, victims of restaurant negligence cannot rely on this theory given the lack of regulation over restaurants’ handling of food allergies. [30] The Massachusetts law actually forbids plaintiffs from citing the statute in a lawsuit, depriving victims of a private cause of action. [31] Therefore, both the barriers to succeeding in negligence claims and the inability to rely on negligence per se reveal a failure to translate restaurants’ moral responsibility into legal accountability. 

Past restaurant food allergy lawsuits shed light on the ineffectiveness of negligence claims. For example, in 2011, Regina Smith sued Benihana Tokyo Inc. for negligence after her son, Elliott Smith, passed away from an allergic reaction to seafood at the Benihana Restaurant in Tennessee. [32] The family believed that either the allergen was present in his meal or he was exposed to smoke emanating from the seafood grill. [33] Despite the medical opinion that Smith’s anaphylaxis was triggered by contamination, the trial court believed there was uncertainty around whether the cause of death was an allergic reaction or an asthma attack. [34] The jury ultimately found that Benihana was not responsible for Smith’s death, and the appellate judge dismissed all appeals. [35] Judge Stafford notably stated that the appellant’s complaint did not contain sufficient “evidence that a dangerous condition actually existed on the premises” to prove premises liability, adding that a premises liability claim has never succeeded in similar lawsuits. [36] 

The plaintiff’s defeat highlights the challenges of persuading the court that the restaurant is at fault for the allergic reaction. Benihana disputed the point that Smith even suffered an allergic reaction, and the trial court shared their doubt notwithstanding the plaintiff’s medical affidavit. [37] Benihana was also absolved of any responsibility to protect Smith from the seafood fumes, but his exposure was primarily in the restaurant’s control. Moreover, despite the outcome of previous premises liability cases, restaurants’ duty of care should include ensuring all conditions are safe for food allergic patrons– not just the meal itself. Had the staff been better trained about airborne food allergens and cross-contamination, they would have foreseen all threats and treated Smith’s allergy with the care he deserved. A life could have been spared, and this painful, drawn-out lawsuit likely could have been prevented. [38]

Similarly to Smith v. Benihana, Sysco Food Services, Inc. v. Trapnell illustrates the consequences of inadequate staff training and the obstacles to holding restaurants liable for allergic reactions. In 1984, a woman named Susan Trapnell, who was severely allergic to sulfites, dined at a buffet at the Officer’s Club in the Corpus Christi Naval Air Station. [39] Her husband informed a chef of her allergy and asked if any sulfites were used in the food, which the chef denied. [40] As Trapnell began eating what she believed were safe dishes, she experienced symptoms of anaphylaxis. Her husband administered epinephrine, and she was rushed to the hospital, but sadly, Trapnell’s reaction took her life. [41] Two years later, Trapnell’s family sued the Navy for negligence and failure to warn, as well as the food distributors who sold the foods suspected to contain sulfites to the Club. [42] The federal court dismissed all claims against the Navy because the chefs did not add sulfites, and because Trapnell could have consumed the allergen before eating at the buffet. [43] After the trial court decided that the food distributors did not contribute to the cause of death, the Texas Court of Appeals ruled that it was yet to be determined how much responsibility each distributor shared for the victim’s ingestion of sulfites. [44] The Texas Supreme Court eventually sent the case back to lower courts, but there are no further records. [45]

Sysco Food Services, Inc. v. Trapnell reflects the complexity of assigning responsibility in food allergy cases. [46] Though the Navy’s victory stemmed from a finding that the chefs did not prepare the food with sulfites, the defendant should have been liable for not advising Trapnell that certain foods were from outside vendors and may have contained the allergen. The chef with whom Trapnell’s husband spoke was her first line of defense; as such, he had an obligation to be informed and to inform about the risks of processed foods as part of the duty to care. [47] A staff and chef training requirement could preempt such incidents by advising employees to consider allergens in all raw ingredients and pre-packaged foods. Once the known or potential risks are conveyed to the food-allergic patron, they can be confident in their decision to dine at the establishment. [48] The chef’s incomplete communication did not constitute negligence, however, and the Navy was cleared of blame. The plaintiffs had the new burden of proving the food distributors put enough sulfites in the dishes to overwhelm Trapnell, prolonging the painful process of determining fault and providing the family with some sense of justice– to the extent it is possible after such a loss. It is important to prosecute the distributors if they did not disclose their use of sulfites, but the dining establishment should be held to higher standards for protecting food-allergic customers. 

Strict food allergy training would address the root cause of allergic reactions in dining establishments, namely, the server’s and/or the kitchen's mishandling of the allergy. An important element, however, is allowing victims to pursue a private cause of action, a right that Massachusetts legislation denies. Specifically, when a victim suspects their reaction was indirectly caused by staff ignorance, they could rely on a negligence per se claim to establish the restaurant’s breach of duty. If the restaurant cannot provide documentation of its compliance with training guidelines, it would automatically be considered negligent, and the plaintiff would overcome a significant obstacle posed by other negligence claims. [49] 

The plaintiff is still obliged to prove causation under the doctrine of negligence per se. [50] They can build a strong case where there is an evidentiary link between the restaurant’s action/inaction and the reaction, but other plausible explanations might undermine their allegation. If the victim possibly consumed the allergen before dining at the restaurant, for example, or if they were sharing food with their friends whose dishes contained the allergen, the connection between the restaurant’s lack of training and allergen exposure becomes tenuous. [51] The causation hurdle underlying negligence per se claims, however, should not overshadow the fact that a private cause of action would motivate restaurants to comply with a federal training requirement. The possibility of a lawsuit would impel them to adhere to the guidelines, strengthening the law’s impact and ultimately reducing the number of allergic reactions in dining establishments. [52] 

The absence of federal food allergy regulations governing restaurants reveals a systemic gap in the protection of Americans with food allergies. State laws attempt to increase staff awareness and create a safer environment for allergic patrons, but they can be improved upon by requiring formal allergy training for all restaurant employees. When a restaurant is responsible for allergen exposure, the victim can only bring certain claims against the establishment. Breach of warranty, failure to warn, and the negligence doctrines pose their own obstacles to proving that the defendant owed a duty to the plaintiff and that the defendant’s actions caused the reaction. However, federally mandated food allergy training would both prevent allergic reactions in restaurants and alleviate the challenges of suing for a reaction. Firstly, universal training requirements would drastically reduce the likelihood of missteps on the part of the server or the chef. They would also create consistent expectations for customers with food allergies, providing reassurance that all restaurants they dine at are prepared to keep them safe. A private cause of action is a necessary component of such a food allergy law, allowing victims of restaurant ignorance to utilize negligence per se to prove the establishment breached its duty. It would both encourage restaurants to uphold training standards and make it easier for victims to obtain the justice they deserve. 

Edited by Yoona Lee

[1] Ruchi S Gupta et al., “The Public Health Impact of Parent-Reported Childhood Food Allergies in the United States,” Pediatrics 142, no. 6, (2018): 1; Ruchi S Gupta et al., “Prevalence and Severity of Food Allergies Among US Adults,” JAMA Netw Open 2, no. 1, (2019): 10. 

[2] “Food Allergy,” American College of Allergy, Asthma, and Immunology, https://acaai.org/allergies/allergic-conditions/food/. 

[3] American College of Allergy, Asthma, and Immunology, “Food Allergy”; Matthew Greenhawt, “Is epinephrine truly lifesaving, and can we prove this?” Annals of Allergy, Asthma, and Immunology 131, no. 2 (2023): 3. 

[4] Roxanne C Oriel et al., “Characteristics of Food Allergic Reactions in United States Restaurants,” The Journal of Allergy and Clinical Immunology In Practice 9, no. 4, (2021): 1675-82. 

[5] Oriel, “Characteristics of Food Allergic Reactions in United States Restaurants,” 1675-82. 

[6] 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,” Food and Drug Law Journal 66, no, 1, (2011): 237. 

[7] D’Andra Millsap Shu, “The Food Allergy Generation Goes to Work,” Boston College Law Review 66, no. 1, (2025): 874-75; ADA Amendments Act of 2008, Public Law 110–325, U.S. Statutes at Large 122 (2008): 3553-3558. 

[8] “Questions and Answers About the Lesley University Agreement and Potential Implications for Individuals with Food Allergies,” U.S. Department of Justice, January 25, 2013, https://archive.ada.gov/q&a_lesley_university.htm. 

[9] Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA), Public Law 108-282, U.S. Statutes at Large 118 (2004): 905-911. 

[10] Roses, “Food Allergen Law,” 225-26; Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA), Public Law 108-282, U.S. Statutes at Large 118 (2004): 905-911. 

[11] Roses, “Food Allergen Law,” 225-26; Food Allergen Labeling and Consumer Protection Act of 2004 (FALCPA), Public Law 108-282, U.S. Statutes at Large 118 (2004): 905-911. 

[12] Roses, “Food Allergen Law,” 240.

[13] Roses, “Food Allergen Law,” 226.

[14] “Food Safety Allergen Awareness,” Rhode Island Department of Health, https://health.ri.gov/food-safety/food-safety-allergen-awareness. 

[15] Rhode Island Department of Health, “Food Safety Allergen Awareness.”

[16] Mass. Gen. Laws ch. 140, §6b.

[17] Rhode Island Department of Health, “Food Safety Allergen Awareness.”; “Food Allergen Awareness FAQs,” Mass.gov, https://www.mass.gov/info-details/food-allergen-awareness-faqs. 

[18] Gideon Martin, “Allergic to Equality: The Legislative Path to Safer Restaurants Student Notes and Comments,” Appalachian Journal of Law 13, no. 2, (2013): 93; Jessica L. Brewer, “To Eat or Not to Eat: How Ohio Can Foster More Confidence between Restaurants and Food Allergic Individuals Comments,” University of Dayton Law Review 41, no. 1, (2016): 319-20. 

[19] Brewer, “To Eat or Not,” 317. 

[20] James J. White and Robert S. Summers, Uniform Commercial Code (West Group, 2000), 342; Sydney Knell Leavitt, “Death by Chicken: The Changing Face of Allergy Awareness in Restaurants and What to Do When Food Bites Back Comment,” University of Toledo Law Review 46, no. 1, (2010): 978-79. 

[21] Leavitt, “Death by Chicken,” 979.

[22] Restatement (Third) of Torts: Product Liability §2 cmt. k (1998); Leavitt, “Death by Chicken,” 973; Brewer, “To Eat or Not,” 310.

[23] Marie Boyd, “Serving up Allergy Labeling: Mitigating Food Allergen Risks in Restaurants,” Oregon Law Review 97, no. 1, (2017): 133-134; Robert H. Wilson, “Restaurants and Food Allergies: A Dangerous Recipe,” Proceedings of 2005 International CHRIE Annual Conference, (2005): 441-443, https://www.academia.edu/1339125/CHEFSATTITUDE_TOWARD_FOOD_IRRADIATION; Roses, “Food Allergen Law,” 234.

[24] Leavitt, “Death by Chicken,” 974.

[25] “Negligence,” Legal Information Institute, https://www.law.cornell.edu/wex/negligence; Leavitt, “Death by Chicken,” 975.

[26] “Res Ipsa Loquitur,” Legal Information Institute, https://www.law.cornell.edu/wex/res_ipsa_loquitur; Leavitt, “Death by Chicken,” 976.

[27] Leavitt, “Death by Chicken,” 975, 976.

[28] “Negligence Per Se,” Legal Information Institute, https://www.law.cornell.edu/wex/negligence_per_se.

[29] Legal Information Institute, “Negligence Per Se.”

[30] Leavitt, “Death by Chicken,” 975.

[31] Mass. Gen. Laws ch. 140, §6b(f); Leavitt, “Death by Chicken,” 987; Martin, “Allergic to Equality,” 89.

[32] Smith v. Benihana Nat’l Corp., 529 S.W.3d, 864 (Tenn. Ct. App. 2019).

[33] Smith v. Benihana Nat’l Corp., 529 S.W.3d, 864 (Tenn. Ct. App. 2019).

[34] Smith v. Benihana Nat’l Corp., 529 S.W.3d, 864 (Tenn. Ct. App. 2019).

[35] Smith v. Benihana Nat’l Corp., 529 S.W.3d, 864 (Tenn. Ct. App. 2019).

[36] Smith v. Benihana Nat’l Corp., 529 S.W.3d, 864 (Tenn. Ct. App. 2019).

[37] Roses, “Food Allergen Law,” 233.

[38] Katherine Fitzgerald, “When Poison is on the Menu: Proposing the Adoption of Ireland’s Stricter Allergen Regulations in America’s Food Establishments,” Journal of Law and Policy 33, no. 2: 125. 

[39] Trapnell v. Sysco Food Services, 850 S.W.2d 529, 533 (Tex. App. 1993). 

[40] Trapnell v. Sysco Food Services, 850 S.W.2d 529, 533 (Tex. App. 1993). 

[41] Trapnell v. Sysco Food Services, 850 S.W.2d 529, 533 (Tex. App. 1993). 

[42] Trapnell v. Sysco Food Services, 850 S.W.2d 529, 534 (Tex. App. 1993); Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 796, 797 (Tex. 1994).

[43] Trapnell v. Sysco Food Services, 850 S.W.2d 529, 535, 537 (Tex. App. 1993). 

[44] Trapnell v. Sysco Food Services, 850 S.W.2d 529, 549 (Tex. App. 1993). 

[45] Wilson, “Restaurants and Food Allergies,” 443.

[46] Wilson, “Restaurants and Food Allergies,” 443.

[47] Wilson, “Restaurants and Food Allergies,” 443.

[48] Martin, “Allergic to Inequality,” 93.

[49] Legal Information Institute, “Negligence Per Se.”

[50] Legal Information Institute, “Negligence Per Se.”; Boyd, “Serving up Allergy Labeling,” 169.

[51] Anderson v. Real Mex Rests., Inc., No. DKC 08-2436, 2010 WL 457522 (D. Md. 2010); Boyd, “Serving up Allergy Labeling,” 976. 

[52] Martin, “Allergic to Equality,” 100-101; Boyd, “Serving up Allergy Labeling,” 169.