Thursday, January 24, 2013

New menu obligations for restaurants?


You may have seen the recent news reports about lawyers getting a new opportunity to sue restaurants under an old bane of the foodservice industry. On first read, they sound as if Chicken Little somehow grabbed a soapbox again: Revamp your menus to accommodate people with food allergies or you could be brought to court under the Americans with Disabilities Act.

This time the sky might actually be falling.

The ADA requires public businesses to make reasonable accommodations for customers or employees with physical impairments, a mandate that spurred many eating places in the 1980s and ‘90s to revamp their layouts and operations.  Some were prodded to action by lawsuits or the threats of one. One way or the other, the burdens and obligations became part of doing business.

But those accommodations dealt largely with access. A lawsuit settlement recently reached between a college dining service and the U.S. Department of Justice ominously states, “Food allergies may constitute a disability under the ADA.”

That means the industry will have to make reasonable accommodation for persons with celiac disease or sensitivities to ingredients ranging from milk to soy.

The college cited in the 2009 lawsuit, Lesley College in Cambridge, Mass., agreed to provide allergen-free selections to students. Each foodservice crewmember will have to undergo training on accommodating allergies.

A separate area for the prep and storage of allergen-free selections has to be set up to avert cross-contamination. The stipulation extends to shelf and refrigeration space, and the installation of appliances just for the allergy-free dishes. For all extents and purposes, a separate kitchen has to be cordoned off.

The settlement also obliges the school to accept advance orders for allergen-free meals, and have them delivered at lunch to the students.

The college also paid $50,000 to each allergy sufferers whose complaints prompted the Justice Department to file the suit. 

Observers are quick to point out that the residential foodservice of a college is different from a streetside restaurant. The facility is serving the students where they live, for the stretch of a semester, so accommodation is theoretically easier and more important; the student has few other options than the dining hall.

But the settlement raises the possibility that food allergies must be accommodated to some degree by all public food sellers.

Most ominous of all might be the “may be covered” phrase in the settlement. Determining a restaurant’s obligation and the extent of accommodation it’s expected to provide could be matters settled in court. And that’s bad for everyone except lawyers.

4 comments:

Alan A. Fowler said...

Your analysis is right.
While this was a settlement between the DOJ and the university, it could be a sign of new litigation against deep pocket, restaurant businesses. Fortunately, the Settlement Agreement's statement that allergies may constitute a disability is not cited to case law or any other controlling authority. Likewise, the Settlement Agreement would be neither controlling nor persuasive in the outcome of future resolutions. But, it's notable that, rather than contesting this interpretation of the ADA and the allegations by the complainants, the University opted settle, whereby the extensively change their procedures and, also, give $50,000 to each of the complainants. ($50,000!) And, this matter is instructive the DOJ is willing to take these matters.
Your words of warning are wise: this could be a new theme of ADA litigation.
It's reasons like this that I'm proud to be a restaurant lawyer.
Great post. Thanks for sharing. I'll be blogging on it as well.
Cheers.

www.alanfowlerlaw.com

Alan A. Fowler said...

Your analysis is right.
While this was a settlement between the DOJ and the university, it could be a sign of new litigation against deep pocket, restaurant businesses. Fortunately, the Settlement Agreement's statement that allergies may constitute a disability is not cited to case law or any other controlling authority. Likewise, the Settlement Agreement would be neither controlling nor persuasive in the outcome of future resolutions. But, it's notable that, rather than contesting this interpretation of the ADA and the allegations by the complainants, the University opted settle, whereby the extensively change their procedures and, also, give $50,000 to each of the complainants. ($50,000!) And, this matter is instructive the DOJ is willing to take these matters.
Your words of warning are wise: this could be a new theme of ADA litigation.
It's reasons like this that I'm proud to be a restaurant lawyer.
Great post. Thanks for sharing. I'll be blogging on it as well.
Cheers.

www.alanfowlerlaw.com

Sarah Tidwell said...

I am sympathetic to people with allergies. However, if these type of strict guidelines make their way into regular restaurants, not only will the owners suffer, but also the diners. Listing every tiny ingredient on the menu is reasonable, however, it's just plain tacky. And making concessions for prep areas, separating each and every little ingredient, is time consuming and costly. And where does it stop? Peanut allergies are fairly common, but there are people out there who are, or at least think, they are allergic to everything. How do restaurants accommodate them? Normal diners and owners should not have to suffer for people with allergies who are willingly eating out and know what risks they are taking. Let it be their responsibility to find out what they should and should not have. Maybe there is a booming industry just waiting to be cashed in on- restaurants that are "allergy friendly" Hmmm...maybe I should get on that.

Sarah Tidwell said...

I am sympathetic to people with allergies. However, if these type of strict guidelines make their way into regular restaurants, not only will the owners suffer, but also the diners. Listing every tiny ingredient on the menu is reasonable, however, it's just plain tacky. And making concessions for prep areas, separating each and every little ingredient, is time consuming and costly. And where does it stop? Peanut allergies are fairly common, but there are people out there who are, or at least think, they are allergic to everything. How do restaurants accommodate them? Normal diners and owners should not have to suffer for people with allergies who are willingly eating out and know what risks they are taking. Let it be their responsibility to find out what they should and should not have. Maybe there is a booming industry just waiting to be cashed in on- restaurants that are "allergy friendly" Hmmm...maybe I should get on that.