by Melissa Deng*
For many of us without food allergies, we don’t think twice about choosing to dine at a restaurant or order take-out––often, the biggest concern is picking which restaurant you feel like eating at, what to order, and comparing costs. But for individuals with food allergies, the choice between dining in and ordering out can mean life or death. Even so, cities you might think are more “food allergy-friendly” like Los Angeles, which has a colloquial reputation for having a vibrant food scene, may not have an ordinance specifically governing food allergen training in restaurants––even while more than fifty percent of adults with food allergies and over forty percent of children with food allergies in the United States have experienced a severe food allergic reaction (of note is that emergency treatment for anaphylaxis resulting from a food allergic reaction increased by 377 percent between 2007 and 2016).
What gives? For starters, the restaurant industry is of course profit-driven, and restaurant associations have a significant impact on lobbying for or against legislation. From an economic perspective, restaurant management might be wary of the increased costs an ordinance specifically mandating food allergen training would impose, compounded by the fact that the restaurant industry generally experiences high turnover (reportedly, there was a 28% average turnover rate for restaurants in LA last year). From a legal perspective, restaurants might not want to face increased liability: with an ordinance that mandates training, plaintiffs can more easily make a prima facie case of negligence by showing that the restaurant’s conduct deviated from an established standard of care. And from a psychological perspective, restaurant staff might have misconceptions about their role in preventing food allergic reactions (for example, believing that the onus falls solely on customers to order a dish that doesn’t have food allergens) and might not realize the potentially fatal consequences, such as anaphylaxis resulting from a food allergic reaction. What this means is that consumers with food allergies are unfairly subjected to a burdensome and dangerous dining experience where each restaurant chooses which food allergen procedures to follow and to what degree.
It is precisely this issue that drove us at the Resnick Center for Food Law & Policy, in collaboration with a professor and clinical immunologist at UCLA, to begin collecting both hospital-based and anecdotal evidence on instances of food-related anaphylaxis in the city, and pursuing the task of proposing a food allergy ordinance in the City of Los Angeles that will mandate a separate food allergen training for all restaurant employees in the city. In the beginning stages of the project, we sought to answer two underlying questions: how do restaurants communicate allergen information to their consumers; and are they effectively training their personnel in allergen disclosure for menu labeling or food handling?
Existing Food Allergen Training: Few Teeth, Many Loopholes
What we’ve found so far paints a bleak landscape. Only eleven states have legislation specifically governing food allergen training: in sequential order, Massachusetts, Rhode Island, Michigan, Maryland, Virginia, Illinois, New Jersey, Texas, New York, Connecticut, and California (discussed below). But even then, the standard is inconsistent. Massachusetts, Rhode Island, Michigan, Maryland, New Jersey, and Texas require restaurants to have posters in the staff areas that generally promote “food allergen awareness.” As you can imagine, this is a vague requirement. Some states like Massachusetts and Texas further specify that the poster needs to detail food allergen risks, symptoms of a food allergic reaction, and a procedure for assisting customers suffering from an allergic reaction––but other states are mum when it comes to specific instructions. And in our own California, the picture is not much improved. It seems positive at first glance: California requires those seeking to obtain a food handler card to take a course that includes training in food allergens and avoiding cross-contamination, and the person-in-charge at the food service establishment must be able to answer questions about food allergens. But the impact of these procedures is questionable. For one, if the person-in-charge can be assisted with aids like cue cards while answering the questions from the health inspector, how much knowledge can they actually call upon and implement in practice (and in a crisis, no less)––especially when studies show that compliance with food handling safety may be weaker during peak service times?
In general, the overarching question is how we can ensure accountability and that practices learned in a food handler training course are enforced in practice. Presently, only New York has a civil penalty not to exceed $125 for each violation of its public health law, which requires a conspicuous notice on menus informing customers to disclose their food allergy to their server. Furthermore, a bill in Maryland appeared to have failed in 2015 after its penalty was removed; in its final iteration, it stated instead that restaurants would not be subject to existing civil or criminal penalties. Without teeth, these laws have no bite, so it’s difficult to discern how successful existing laws on food allergen training really are at holding restaurants accountable, especially in light of studies showing significant disinterest in food allergen training.
Identifying the Disconnect: False Fluency and Knowledge Gaps
One key study from 2016 surveying 229 restaurant employees found that employees were uninterested in attending food allergen training because they didn’t see the benefit or need, time constraints, turnover intention, a high degree of confidence about handling food allergen issues appropriately, and non-applicability (one feedback comment stated “I’m not preparing foods, I’m preparing drinks).
The high degree of confidence becomes especially concerning when the same study found that both front and back of house employees displayed misconceptions about food allergies. On average, participants did not feel that restaurants as a location were more prone to food allergic reactions than other establishments, and that many were confused about the difference between a food allergy and intolerance. Moreover, the study found that many respondents placed the onus of food allergen safety entirely on guests with food allergies rather than staff, with feedback comments such as “there is no need for a training, as they (the customers) could select something else from the menus that do not contain food allergens”–– which ignores the risks of cross-contamination, for example––and “it is not my job to monitor what other people are eating.”
Evidently, much of the problem seems to stem from a lack of knowledge about the severity of food allergies, the frequency of anaphylaxis occurring in restaurants as opposed to other establishments, and the lack of consequences and accountability. In order to try and understand the landscape in LA, we created an anonymous multiple-choice survey and distributed it to restaurants across the City of Los Angeles. So far, we’ve received responses from four restaurants ranging from only 16-30 employees to over 250, with the latter restaurant being the only respondent to argue that the responsibility of food allergen safety laid with the customer rather than the restaurant. Interestingly, the one restaurant to oppose the proposed ordinance (46-60 employees) was also the restaurant with the least food allergen safety procedures in place. We are also distributing a survey to allergists and physicians to collect anecdotal evidence regarding instances of food-related anaphylaxis, which we hope will substantiate our ordinance proposal and fill an important data gap.
Onto the Second Course
Of course, I’ve learned that lawmaking is much, much easier said than done, especially for an endeavor lying at the nexus of public policy, public health, and litigation. Thinking about and proposing an ordinance in a city as large as Los Angeles has proved to be a daunting task. For reference, to even get an ordinance in front of the City Council, we would need our petition to receive “15% of the total votes cast for all candidates for Office of Mayor at which a Mayor was elected prior to the filing of the petition, all within 120 days of the filing date.” In 2022 it appears that 929,974 votes were cast for Mayor of Los Angeles, meaning that we would need approximately 139,496 signatures!
But we are fueled with momentum to create a more equitable eating environment that protects the lives of customers with food allergies, all the while taking into account restaurant business considerations and incentives. Striking the balance will by no means be easy. But through this process, we are determined to receive as much input from relevant stakeholders as we can by continuing outreach to restaurants of different sizes and cuisines, asking about their concerns, and keeping them engaged in the process. Collecting input also means speaking to healthcare providers to collect more empirical and anecdotal data about the instances of food-related anaphylaxis in our city and making a case to restaurants. And moreover, it means addressing a series of concerns, like: who will bear the costs, especially when restaurants are already facing increased costs of doing business in this state? How can we ensure that smaller mom-and-pop restaurants don’t disproportionately bear the burden? How can we design a training framework that is interesting and engaging? How can we enforce the ordinance and ensure compliance? How can we ensure that the language of such training is as accessible as possible, especially for restaurant personnel whose fluency in English is limited?
The questions are numerous and the road is long, but we are determined to continue working toward building an ordinance and a Los Angeles that isn’t just a foodie haven by name, but one that is vibrant, inclusive, and––most importantly––actually safe and accessible for consumers with food allergies.
*Melissa Deng is a 2L at UCLA School of Law and 2024–25 Co-Chair of Food Law Society at UCLA Law.
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